Since the Gov. Gray Davis recall drive began, the working assumption has been that voters would decide whether to remove him from office and pick his replacement.

Now, legal experts are pondering the propriety of the second question. They're asking if the ballot must include a choice for Davis' successor or if Lt. Gov. Cruz Bustamante would automatically get the job.

"There is a genuine ambiguity in the (state) constitution in which either interpretation is plausible," said UCLA law professor Dan Lowenstein. He leans toward the prevailing interpretation that voters make the pick, but says the issue is ripe for a legal challenge.

Bustamante has sought legal guidance on the issue from the Secretary of State's Office, said his spokeswoman, Deborah Pacyna. Bustamante does not subscribe to the theory that he is the legal successor, she said.

With attorneys swarming the first gubernatorial recall election in state history, it seems almost certain the Bustamante-succession theory will be tested in court.

"I don't know if this is 100 percent on solid ground," said Bob Mulholland, state Democratic Party political strategist. But, he said, "every part of every code is being looked at. No matter what some experts say, it (the recall) ultimately could be decided by courts."

LEGAL FRONT: At issue are two provisions of the state constitution:

• "An election to determine whether to recall an officer and, if appropriate, to elect a successor shall be called by the Governor and held not less than 60 days nor more than 80 days from the date of certification of sufficient signatures."

-- Article 2, Section 15 (a) (emphasis added).

• "The Lieutenant Governor shall become Governor when a vacancy occurs in the office of Governor."

-- Article 5, Section 10 (emphasis added).

The constitution is clear that when the governor is subject to recall, the lieutenant governor performs the ministerial act of calling the election. Beyond that, there is confusion.

What is meant by "if appropriate"? Was that intended as a reference to exclude the governor from a replacement election since the succession is uniquely spelled out in Article 5?

Or, is "if appropriate" designed to only exclude the cases of replacing Supreme Court and appellate court judges? The constitution specifies that if they are recalled, voters don't get to select their replacements.

Or, does "if appropriate" simply refer to the outcome of the first part of the recall election? For example, the election of a successor would not be appropriate if voters rejected the removal of Davis.

Next, what is meant by "a vacancy"? If the governor is recalled, is the office vacant? Or does the voter selection of a successor on the same recall ballot avoid the creation of a vacancy that would trigger the lieutenant governor assuming office?

TIMING: The Bustamante-succession theory, if upheld, would ensure that Democrats would keep the state's top job if Davis were recalled.

But, if Democrats want to make that argument, they should do so before the election, said Loyola Law School professor Rick Hasen.

The issue could probably only be resolved by the state Supreme Court. The justices, Hasen said, are not going to want to undo the election after voters have spoken.

As for whether the argument might prevail: "I wouldn't put it completely out of the realm of possibility," he said. "But I don't think it's likely to succeed."