A QUESTION

Has anyone seen it reported anywhere whether the recall election would still go forward if Gray Davis just resigned and let Bustamante become governor?

ANSWERS? (via Mike Daley)
Is Shelley the new Katherine Harris? (Daniel Weintraub, June 26, 2003, California Insider)

I see I'm not the only one having a hard time getting straight answers from Secretary of State Kevin Shelley about the recall rules. Roll Call reports that a Shelley spokeswoman says it is "unclear whether a scheduled recall election would proceed if Davis resigns before it takes place." (Article is for paid subscribers only; I got the quote through Rick Hasens Election Law blog.) Shelley's office has also been painfully slow in answering questions I?ve had about how things will unfold, and up until now I've given them the benefit of the doubt, figuring they're new in the job and a little bit overwhelmed. But the longer this goes on the more I'm inclined to suspect that Shelley wants to keep things vague so he can make it up as he goes along-sort of a Democratic version of the post-election legal interpretations in Florida 2000. I don't think Davis is going to resign, but shouldn't Shelley know by now what the law says about the effect of a resignation in the face of a recall? And even if we observers think the law is unclear, shouldn't Shelley have an opinion, since that's where the process of sorting it out would begin?

MEANWHILE:
Recall Hypothetical (Daniel Lowenstein, UCLA Law School)

Although the question has no practical significance, I don't agree with Rick and Fred that, were Davis to resign, Bustamante would remain governor if the majority voted against the recall. I agree with them on the important point, that the recall election would proceed even if Davis resigned. I also agree that Bustamante would become governor, to fill the vacancy. Here is the relevant section, Elections Code Section 11302:

If a vacancy occurs in an office after a recall petition is filed against the vacating officer, the recall election shall nevertheless proceed. The vacancy shall be filled as provided by law, but any person appointed to fill the vacancy shall hold office only until a successor is selected in accordance with Article 4 (commencing with Section 11360) [which appears to have been repealed] or Article 5 (commencing with Section 11380), and the successor qualifies for that office.

That language suggests to me that the "yes-no" recall question would become irrelevant. The governor after the election would be the person who received a plurality of votes in the replacement election. Of course, that could be Bustamante, but not be reason of his being lieutenant governor.

Posted by Orrin Judd at August 8, 2003 1:13 PM