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SACRAMENTO — Although the state Supreme Court left open the possibility of a successful court challenge to the governor’s recall, such a win would probably not stop the Oct. 7 election, a lawyer working on behalf of Gov. Gray Davis said Friday. Paul Kiesel, of Beverly Hills’ Kiesel, Boucher & Larson, filed suit challenging the validity of the signature gathering that helped put the recall on the ballot. Kiesel’s request for an injunction stopping the election was rejected by superior and appeal courts in Los Angeles. On Friday, the California Supreme Court justices declined to review the case. The justices voted 5-0. Chief Justice Ronald George and Justice Janice Rogers Brown did not participate. George was at a conference; Brown was at the University of Virginia, where she’s pursuing an LL.M. degree. The order sends the case back to L.A. County Superior Court, where a hearing is scheduled for Aug. 8. Kiesel is working pro bono for Taxpayers Against the Recall. Although he said he was still evaluating his options, Kiesel all but conceded defeat Friday. “Unfortunately, I believe we have run out of time,” Kiesel said. “It would be very difficult for the Supreme Court to attempt to roll the clock back. I just think that was asking for too much.” Nick Velasquez, spokesman for Taxpayers Against the Recall, said that because the state high court did not rule on the merits of the matter, there’s still a chance it could succeed. Kiesel said he’s considering backing off entirely to avoid giving people the “impression that we’re trying to frustrate voters’ right to express themselves.” The case, Robins v. Shelley , S117661, alleges recall proponents violated state law by using non-residents and people who were not properly registered to vote in California to collect signatures. Kiesel originally wanted an injunction to stop Secretary of State Kevin Shelley from certifying the election until the matter could be sorted out. Even if recall proponents eventually had prevailed, it might have delayed the election until the spring — a benefit for Davis because more Democrats are expected to come out then to vote in the presidential primary. After Shelley’s certification last week, Kiesel amended his petition asking the court to decertify the election. Kiesel said the court wasn’t very likely to do that now. Even so, he believes the case has raised important questions the court will need to answer. A lawyer for recall proponent Ted Costa disagreed. “I didn’t think much of their case before, and I don’t think much of it now,” said Bruce Ericson of Pillsbury Winthrop’s San Francisco office. Election law expert Richard Hasen, a professor at Loyola Law School in Los Angeles, said he wasn’t surprised by the Supreme Court’s ruling. He said the requirement that signature gatherers be registered is probably unconstitutional anyway. Still, he thinks there are a few possibilities for Davis proponents to challenge aspects of the election. Kiesel said he wasn’t planning any more litigation. His client, the taxpayers group, said it was now going to concentrate on the election rather than legal challenges. Hasen is keeping close track of litigation possibilities at his Web log, www.electionlaw.blogspot.com.

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