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A Weblog by
Sacramento Bee Columnist Daniel Weintraub

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July 23, 2003

Et tu, Cruz?

California now has a potential constitutional crisis on its hands:

An unofficial survey of counties by the Bee suggests that Secretary of State Kevin Shelley will get the word by today that more than enough signatures have been collected and verified to qualify the recall for the ballot. Shelley and Lt. Gov. Cruz Bustamante, who will set the election date, have said they will act quickly. Bustamante also said he will likely set the election at the far end of the 60-to-80-day window, making Oct. 7 the most likely date. But…

In a stunning development, Bustamante also told the Bee here that he will not call an election for a successor to Davis. The election, he said, will be on the recall only. And he will leave up to a commission dominated by Democrats the decision about whether to ask the California Supreme court if a replacement election must also be held. If there is no replacement election and Davis is recalled, Bustamante would succeed him as governor.

This is a scenario first floated last Friday by my colleague Dan Walters. While at first I thought it had credence, further research suggests to me that it does not. The theory rests on the words “if appropriate” in the following language from the constitution:

SEC. 15. (a) An election to determine whether to recall an officer and, if appropriate, to elect a successor shall be called by the Governor and held not less than 60 days nor more than 80 days from the date of certification of sufficient signatures.

Bustamante is suggesting that those words mean there should not be an election for a successor because the constitution already lays out a method for filling a vacancy in the governor’s office, namely promoting the lieutenant governor, Bustamante.

Those words were added to the constitution in 1974, with no suggestion at the time that they meant to stop an election of a governor’s successor in the event of a recall. It makes more sense to conclude that they apply to the case of appellate court justices, who can be recalled but are never elected. If one of them were recalled, the governor would have to appoint a successor.

The original language in the 1911 amendment with which the voters created the recall included extensive provisions for a successor election and no suggestion that it was optional.

Bustamante is making mischief here, at some peril to the state and, I would suggest, at great peril to his own political career.

UPDATE: Election Law blogger Rick Hasen says here that it would be best for California if the state Supreme Court stepped in to settle all the questions about the election promptly and cleanly. While I agree this might be necessary, I note that Bustamante isn't calling on the court for a ruling; he is invoking the Democrat-dominated Commission on the Governorship. That's where the mischief lies.