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State Supreme Court refuses to block Davis recall election DIFFERENT STANDARDS The issue of nonpartisan candidates facing a different standard for getting on the recall election ballot is a "huge hole in the California elections code, " said Hasen. Vigo "Chip" Nielsen, former legal counsel to Gov. Pete Wilson and a widely recognized election law expert, said the issue of whether voters can bypass the recall and vote on the governor's ballot is likely to be resolved quickly, in part because it probably won't affect many people. "Very few people are going to say, 'I want Mary Smith to be my next governor, but I don't want to decide if there should be a next governor.' " Feeney said he thinks the question of succession by the lieutenant governor, spelled out clearly in the state Constitution, is one of those "sleeper issues." Just because Bustamante dismissed the issue in calling an election that includes a replacement ballot doesn't mean the issue has gone away. "I wouldn't be surprised if that resurfaced at some point," Feeney said. Other issues some scholars expect to see raised are whether a voter who casts a ballot against the recall should be allowed to vote for a replacement and whether the state's campaign finance limits should be extended to Davis' campaign. Right now, his effort to stave off recall is not subject to spending limits. POSSIBLE REIMBURSEMENT Nielsen even raised the prospect of a post-election lawsuit challenging the provision that the candidate being recalled is entitled to reimbursement for personal and legal expenses incurred. Does it mean, Nielsen wondered, that Davis could be entitled to reimbursement for the cost of his campaign? But for all the legal activity expected around the recall, experts said they expect the courts to move swiftly to uphold the Oct. 7 election. "I think the idea that it's a legal quagmire is Davis spin," said Nielsen. "It's simple and straightforward, so it's a question of what people think is appropriate -- whether the recall is fair, whether it's worth the cost. Those are questions of appropriateness, not legality. People can disagree whether it's appropriate, but I think they'll find no support in the court." "It's a little bit like the last part of a championship basketball game," concurred Feeney. "There's a tendency of the officials not to want to have the thing decided by a whistle. The courts are the same way -- they want it to be decided by a vote of the people." But, as Hasen noted, experts made a lot of predictions as the Bush-Gore legal fights unfolded in Florida after the 2000 presidential election. "The bottom line there is that every legal expert's prediction . . . turned out to be wrong," he said. Meanwhile, the secretary of state's office has assigned numbers to the two state propositions that will share the Oct. 7 ballot with the recall vote. Proposition 53 will earmark money for the repair of the state's infrastructure while Proposition 54 will bar state and local governments from classifying students, contractors or public employees by race.
E-mail Mark Simon at msimon@sfchronicle.com.
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