Shaun Martin and his wife, Sandy Rierson, don't consider themselves political activists, but there was something about California's recall electoral procedures that struck the San Diego law professors as "bizarre and unusual."
The couple worked day and night to file a lawsuit last week questioning its constitutionality.
Today, Martin, a professor at University of San Diego, and Rierson, a professor at Thomas Jefferson School of Law, will stand before a San Diego federal judge and make their argument in the expedited case. The judge could rule on the matter as early as today.
Martin, Rierson and the lead plaintiff on the case, Frank Partnoy, who also is a University of San Diego professor, say that because of an outdated and unconstitutional statute, a significant number of votes will not be counted in the recall election.
That's because the 1911 statute states that in recall elections, votes for successors are only counted for those who also vote on whether the officer should be recalled.
If the statute is struck down and all votes are counted, Martin said, the impact could be significant.
Historically, 4 percent to 8 percent of recall voters don't answer the first question whether the officer should be recalled. In elections with many candidates, as is expected in California's gubernatorial recall, those votes could play a pivotal role.
Martin, who declined to state his political affiliation, says he is simply trying to serve the public interest.
"It was our strong belief that everyone should be entitled to vote, and someone should file a lawsuit to vindicate their interests," he said yesterday.
Meanwhile, the defendants in the case – the secretary of state and registrar of voters in San Diego and Los Angeles counties – have argued the statute ought to be upheld because it protects the validity of the recall process.
In a brief filed yesterday, the state attorney general, who is representing the secretary of state in the case, argued that California has "an important government interest" in upholding the statute.
Kenneth R. Williams, a supervising deputy attorney general, compared the scenario with allowing jurors to withhold their vote on someone's guilt or innocence, but then have a say in the sentencing.
"The reason we're having the election is to determine whether to recall Davis," Williams said. "If someone doesn't want to vote on that, their preference (for a successor) is not germane."
The argument is two-pronged: It is not an onerous burden to answer the first question, and it could diminish the legitimacy of the results if there isn't a majority of total votes cast for the recall question.
San Diego's registrar of voters filed a similar brief yesterday, saying that changing the statute could create confusion.
Despite these arguments, many legal experts and law professors around the state support Martin and Partnoy's case.
"I think the argument has merit," said Richard L. Hasen, an election law specialist at Loyola Law School in Los Angeles. "When you exclude a class of persons from the right to vote, you have to have a good reason. It doesn't appear that the government has come up with a very strong reason to justify the statute."
Professor Vikram David Amar at Hastings College of the Law in San Francisco stated his support of the professors' argument. Since the statute was enacted in 1911, Amar said, the U.S. Supreme Court has decided numerous cases expanding the right to vote.
Amar, who has written a column on the topic and predicts the court will strike down the statute, said the real question is what will happen next.
One option is the court would eliminate the statute and all votes would be counted for both questions. Opinions vary on whether this would hurt or help Davis. Another option, he said, is the court could rule that the statute is unconstitutional, but central to the core of the recall procedures. That could result in the recall being declared unconstitutional.
Regardless of what happens, some professors say they believe the matter will be appealed and could drag on until Aug. 20, when the ballots are scheduled to be printed.
Martin, who started talking with his wife and colleagues about the issue just a month ago, said he doesn't have strong feelings about the recall, except for constitutional concerns. In the past week, Martin has spent more than 50 hours on the case and will be compensated only if the judge wishes to do so.
Those who would be affected, Martin predicts, are moderate swing voters, who don't like Davis, but also don't like the process of the recall and its expensive price tag.
Martin, who has taught civil procedure at USD for eight years, says it's the first public interest lawsuit he's filed.
Rierson, who is eight months pregnant with their second child, said she hopes the lawsuit will eliminate confusion and frustration.
"In the last election, there were people disenfranchised because of imperfections in the process," Rierson said. "We should avoid doing that whenever we can."