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The California Supreme Court on Thursday refused to throw Gov. Gray Davis a legal life preserver, rejecting petitions that could have prevented or postponed the Oct. 7 recall election. The seven justices voted unanimously in all the matters, except Burton v. Shelley, S117834, which set off a prickly exchange between two dissenters — Chief Justice Ronald George and Justice Carlos Moreno — and the other justices. Burton argued that $3,500 and 65 signatures was too low a threshold for candidates to get on the ballot. In a five-page dissent, George said he would have immediately ordered Secretary of State Kevin Shelley to stop preparing for the Oct. 7 recall. “The substantial questions that are raised by this petition involve fundamental rights of all voters in the recall election, and of the potential candidates on the recall ballot, that could well affect the outcome of the recall election. These questions should be resolved before the election, rather than after the election in the event the recall is successful,” George wrote. Although George’s words echoed claims made throughout Burton and three of the other petitions, the other justices smacked down George’s ideas, even attacking his reasoning and reliance on election law. “The alternative standard proposed by the chief justice relies on a formula for recall elections that was removed from the Constitution in 1974 � and from statutory law in 1976. The secretary of state cannot be faulted for failing to apply a standard that does not explicitly appear in current law.” The order was signed by Justices Marvin Baxter, Kathryn Mickle Werdegar, Ming Chin and Janice Rogers Brown. Justice Joyce Kennard wrote a separate concurrence. The justices had much less trouble with the other petitions, which alleged that successor candidates and University of California Regent Ward Connerly’s “racial privacy” initiative do not belong on the same ballot as the recall. Only one of those, Frankel v. Shelley, S117770, got more than a few words. Frankel inspired about a page and a half from George, who said that lawyer Jerome Falk Jr. of Howard, Rice, Nemerovski, Canady, Falk & Rabkin did not demonstrate sufficient likelihood that the recall would succeed. “I’m shocked and profoundly disappointed with the court for denying relief in all five cases,” said Jon Eisenberg, the Horvitz & Levy partner who filed one of the other cases, Eisenberg v. Shelley, S117763. Eisenberg sought to remove two propositions from the recall ballot and put them on the same March ballot as the presidential primary. The orders came out late in the afternoon after several hours of delay by the court. At the Supreme Court clerk’s office in San Francisco, members of the press started camping out as early as 11:30 in the morning, clerks said. Their numbers grew as the hours crawled by until there were at least six television cameras and about 20 reporters waiting when the orders were released. To fill their time, camera operators walked around photographing the clerks at work, piles of recall petitions on the counter, photos of the justices and even the media frenzy itself. Reporters repeatedly asked the clerks questions about the process, only to be told the staff had been ordered not to talk. Members of the press got a 5-minute heads-up when the orders were ready and quickly crowded near the desk as copiers could be heard running in an adjacent room. Although the justices denied what many observers believed was Davis’ best shot at beating the recall, Hastings College of the Law professor Vikram Amar thinks they might have left an opening. In Davis v. Shelley, S117921, lawyers with Remcho, Johansen & Purcell, the well-known Democratic firm out of San Leandro, argued that the hasty election threatened to violate some voters’ rights under the equal protection clause of the U.S. Constitution. Amar said it appears the case was denied on its merits, rather than a technicality such as lack of standing, so it’s possible it can be appealed to the U.S. Supreme Court. “I’m a little surprised they didn’t say anything in Davis,” Amar said. Asked whether Davis planned to appeal, Robin Johansen, of the Remcho firm, said she and the rest of the governor’s legal team hadn’t decided yet. There are other possibilities, too. On Thursday, the American Civil Liberties Union filed a federal suit making similar equal protection claims based on the fact that some counties are planning to use outdated voter equipment. That case is on top of other matters pending in federal court regarding the historic recall. The other matter rejected by the state Supreme Court on Thursday was Byrnes v. Bustamante, S117832, which made claims similar to Frankel. Associate Editor Mike McKee contributed to this story.

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