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SACRAMENTO — Gov. Gray Davis’ legal team wants the state Supreme Court to decide whether California voters will have their constitutional rights curtailed if the effort to recall Davis proceeds apace. And by raising such federal constitutional concerns about voters’ rights, election law experts say Davis’ lawyers may have given him his best shot yet for keeping his job. “That’s a legitimate issue. A number of us who have been following elections have been worried about that for some time,” said Fredric Woocher, an elections practitioner with Santa Monica’s Strumwasser & Woocher. Lawyers for Davis on Monday filed a petition asking justices to postpone the special recall election from Oct. 7 until the March 2004 primary and allow Davis to run as a possible successor candidate should voters approve the recall. In Davis v. Shelley, S117921, the governor’s lawyers argue the recall is such a logistical nightmare that voters are sure to be disenfranchised. “The recall election will be conducted in such a manner as to deny equal protection to certain voters and denigrate their fundamental right to a fair election,” according to the petition. Until Monday, litigation over the recall had been a scattershot of petitions focusing primarily on the state’s elections code and how the recall has been placed on the ballot by the secretary of state. Davis’ filing, however, aims squarely at the more fundamental constitutional question of whether voters will be disenfranchised by an Oct. 7 vote. Where attorneys in the other filings have denied any political motivation behind their papers — they say they just want to do right by voters — Davis’ lawyers say it’s impossible to untangle the political and legal issues. “The two operate together here,” said one of the Davis attorneys, Robin Johansen, managing partner of San Leandro’s Remcho, Johansen & Purcell. “The more people who vote, the more legitimate the election will be.” Republicans have criticized the suits as delay tactics — a charge Johansen embraces. “Yes, in fact � there are good reasons for doing that,” she said. The Remcho firm is part of a high-profile legal squadron Davis has employed to battle the recall. Also on the team is Michael Kahn, name partner at San Francisco’s Folger Levin & Kahn. At the height of the 2001 energy crisis, Kahn was Davis’ pick to lead the California Independent System Operator, which is charged with managing the flow of electricity in the state. Davis is also employing Kathleen Sullivan, dean of Stanford Law School and a noted constitutional scholar. The new suit says the Oct. 7 election is simply coming too fast, and the hasty preparations, such as consolidation of polling places and using outdated voting machines, will exclude some voters. Besides giving county registrars more time to prepare, both sides of the recall battle agree that holding the election in spring, at the same time as the Democratic presidential primary, gives Davis a much better chance of staying in office. Like three of the other petitions over the recall election, Davis’ filing names Secretary of State Kevin Shelley as defendant. A fourth petition names Lt. Gov. Cruz Bustamante. Supreme Court justices had put those petitions on an accelerated briefing schedule, and Attorney General Bill Lockyer, who is defending Shelley and Bustamante, submitted his opposition Monday. Papers in the new case are due Wednesday. Among other arguments, Lockyer’s papers raise the issue of the obscure Commission on the Governorship, which the state constitution says has “exclusive” power to petition the Supreme Court to intervene when the governor’s office is unresolved. Last month, Senate President Pro Tem John Burton, who chairs the five-member commission, said the body would not get involved and that he understood the commission only came online if the governor’s office was vacant for a reason besides a recall. Even so, Hastings College of the Law professor Vikram Amar agrees with Lockyer and said the standing limitation was similar to the “political question” doctrine in federal court. That says politicians should try to work things out before heading into court. It’s one of the reasons Amar would give Johansen’s argument the best shot at helping Davis. “I think if the Supreme Court weighs in after the commission asks it to, that’s very different,” Amar said. Jerome Falk Jr., the partner with Howard, Rice, Nemerovski, Canady, Falk and Rabkin who filed a petition arguing that Bustamante should automatically become governor if Davis is recalled, said he doesn’t buy Amar’s reasoning and is confident his case will proceed. QUOTING ‘BUSH V. GORE’ Johansen’s petition relies heavily on the U.S. Supreme Court’s Bush v. Gore, 531 U.S. 98, which it quotes: “A desire for speed is not a general excuse for ignoring equal protection guarantees.” And it raises the possibility of a Florida-style election mess if justices do not act. The petition also echoes complaints by another contingent of Davis supporters. The National Association for the Advancement of Colored People announced last week it was going to be the plaintiff in a federal case alleging minority voters in urban areas could be left out of the voting. That case still has not been filed; however, the Mexican American Legal Defense and Educational Fund filed a federal suit Friday based on a similar claim. Although legal experts believe allegations of disenfranchisement represent Davis’ best shot at persuading the Supreme Court to intervene and possibly even delay the recall, they didn’t give high marks to a second issue raised in the new suit. The case asks the court to change the secretary of state’s rules regarding how voters elect a successor should they bounce Davis on the two-part ballot. For now, a simple majority vote — yes or no — will determine if Davis is recalled. The second vote, for a successor, is decided by plurality. That, Davis’ lawyers argue, violates the U.S. Constitution’s Guarantee Clause. “If the recall election is allowed to go forward � California’s new governor will not represent the interests of a majority or even a significant plurality of the state, as the Guarantee Clause requires,” according to the petition. Although he likes the argument about voters’ rights, Amar, the Hastings professor, does not believe the state law requirement that Davis stay off the ballot violates the U.S. Constitution. Being barred from the ballot is a rule just like other rules for elected officials, such as age requirements and term limits, and courts have consistently upheld those, Amar said. Woocher, the Santa Monica lawyer, agreed, calling the claim Davis’ “Hail Mary” long shot in case other issues fall flat. Bush v. Gore may have solidified equal protection claims being used in elections litigation, but that doesn’t mean Davis gets to use that claim to be on the ballot, Woocher said.

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