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Office of the Chancellor / Public Affairs
Wednesday, August 6, 2003
 

Sacramento Bee 8-6-03

Peter Schrag: Feinstein, confusion and the ghosts of Florida 2000

 

The California Supreme Court isn't likely to read the state constitution's ambiguous recall provisions in such a way as to declare that Lt. Gov. Cruz Bustamante would become governor if Gray Davis were recalled. Although a suit filed last week asks for precisely that, this is not the kind of fight that any court wants to get into the middle of.

But if it does rule against the suit, or ducks the issue, it could create a major problem both for the state and for President Bush and for the national Republican Party.

If no big Democrat enters this race and Davis is recalled, there's a good chance that, in a field of dozens of candidates -- from Bill Simon, who lost to Davis last November, to Hustler publisher Larry Flynt -- the ultimate winner would get 15 percent to 20 percent of the vote, while Davis would get 45 percent to retain him. Should that happen, the all-but-forgotten ghost of the Florida Bush v. Gore recount could be back -- with a vengeance -- to stalk the 2004 election.

Davis is counting on the same logic in his suit to delay the election until March and get on the ballot to succeed himself. Even if he loses, as he probably will, the point is made.

There's been lots of talk among Democrats about the recall's being yet another GOP plot such as the impeachment of President Clinton and, more recently, GOP House leader Tom DeLay's attempt to muscle a second redistricting through the Texas Legislature to secure seven more safe congressional seats for his party.

But if a Republican were to get the necessary plurality with even 25 percent of the vote while Davis got 45 percent, there'll be a lot more ammunition for the argument that once again Democrats have been cheated. That'll be especially true in the face of the decision of county officials, confronted by tight budgets, to eliminate hundreds of polling places, thus making it harder for many poor people to get to the polls.

The Supreme Court set a noon deadline today for briefs to be filed in the suit on the successor election. The plaintiffs, James and Louise Frankel, who identify themselves as citizens and taxpayers, base their case on the constitutional language that a successor election must be called when a recall qualifies -- "if appropriate." But because the constitution already provides that the lieutenant governor succeeds if there is a vacancy in the governor's office -- regardless of the reason for the vacancy -- a successor election is never "appropriate."

The court may never reach the substance of the issue. It could simply rule that, as Hastings Law School professor Vikram Amar argues, the Frankels have no standing to sue -- that that power belongs exclusively to the Commission on the Governorship, a body so obscure that most of its members never knew they were on it. It includes John Burton, president pro tem of the state Senate; Assembly Speaker Herb Wesson; and Steve Peace, the governor's director of finance -- all Democrats; and the president of the University of California and the chancellor of the California State University.

But if any group is likely to be even more nervous than the state Supreme Court about getting into this fight, the commission is it. The voters have been told since the start that they get to pick a successor if they vote to recall Davis. Telling them they would be stuck with Bustamante if Davis goes will seem like a lawyers' trick.

But it can also be said, as the Frankels contend, that the voters of California already picked a successor -- Bustamante, whose major reason for existence as lieutenant governor is to step in if the governor dies, or quits, or is removed either by impeachment or recall -- and that Bustamante got a lot more votes in 2002 than the winner of the successor election is likely to get. To a lot of people that would smell like a coup.

All this, like the consequences of the half-dozen other lawsuits now pending or contemplated in this mud fight, among them the Davis suit, is subject to yet more imponderables. It also heightens the chances that California's business-political establishment, including a lot of Republicans, will prevail on Sen. Dianne Feinstein to run and save the state from even further political destabilization and economic uncertainty.

The pressure on Feinstein is already enormous, and it will only increase if some politically plausible Republican moderate gets into the race. Actor-muscleman Arnold Schwarzenegger, who for the last month has played California's political Hamlet, says he'll officially decide today, then explain his decision -- where else? -- on Jay Leno's "The Tonight Show."

If Schwarzenegger doesn't run, former Los Angeles Mayor Richard Riordan says he may. From the sound of things, Riordan and his friend Schwarzenegger have been drawing straws for weeks about who gets to run. But both have enough liabilities to scare a lot of people to death.

Feinstein to the rescue?