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Sacramento Bee Columnist Daniel Weintraub

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August 08, 2003

"What happens if Gray resigns?"

Although nobody in California politics -- including me -- expects Gray Davis to resign, the reading public is fixated on this question, and I continue to be deluged with emails asking what will happen if he does. Does Cruz become governor? Does the election go forward? Is it possible that Cruz could become governor to fill the vacancy, lose the election and be completely out of a job in the span of a few days? This is an especially delicious question now that Cruz has filed to run and Gray might have reason to take the lite-gov down with him.

Election law blogger Rick Hasen discusses the subject here and links us to a debate among other election law experts here. To this I add the perspective of the Secretary of State Shelley's communications director, Terri Carbaugh, in an interview with your blogger Friday afternoon.

First, though, I should say that it's been widely assumed that if Davis resigns, Bustamante becomes governor and the election goes forward. This is based on section 11302 of the Elections Code. But two questions arise:

1) What happens if voters reject the recall? and

2) What happens to Bustamante if the voters approve the recall and then select someone else to be governor? Is he out of a job altogether? Or does he go back to being lieutenant governor?

This news won't surprise you: the codes are all screwed up. Here is the section in question:

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) or Article 5 (commencing with Section 11380), and the successor qualifies for that office.

That's great, except that neither Section 11360 nor Section 11380 exist any longer. They were dropped from the code in one of those infamous "clean-ups" (which increasingly remind me of the way my kids "clean up" their rooms, by shoving stuff under the bed and into the closet.)

The SOS was kind enough to supply me with the wording of the now-missing sections. Section 11360 referred to the recall of city officers. Section 11380 referred to everyone else. The provisions are those that spell out the methods for holding the replacement election, and most of them have survived and live on under different section numbers.

According to Carbaugh, Shelley's conclusion is that if Gray resigns, Cruz becomes "acting governor" until the election. Then, if the voters reject the recall, Cruz remains governor and assumes the office until the next regularly scheduled election. If the voters approve the recall, and someone other than Cruz wins the replacement election, that person becomes governor and Cruz returns to his post as lieutenant governor.

Problem: nothing in the statutes says Cruz becomes acting governor rather than governor if a vacancy occurs due to resignation. In fact, Article V of the constitution says this:

The Lieutenant Governor shall become Governor when a vacancy occurs in the office of Governor.

It doesn't say acting governor. It says governor.

I also find nothing in the statutes or constitution that says how the Secretary of State should treat the recall question if Gray resigns. It says only that the lieutenant governor becomes governor and the election goes forward, with the winner becoming governor. The law ignores the question of what do do with the recall election itself at that point.

"This certainly is one of those legal issues that is far from crystal clear," Carbaugh said. Yup.

NOTE: My colleague Dan Walters, who was the first to raise the infamous "if appropriate" question, was also the first person I heard suggest the Cruz-is-out-of-a-job scenario. I withheld discussing it for a time while I waited for him to put it in print, but he is on vacation this week and the issue has now hit the blogosphere. Sorry Dan.