August 11, 2003

Davis' Recall Severability Case

I wanted to blog about an argument that Gray Davis could make to overturn the entire recall process, and found that Vikram David Amar and Alan Brownstein -- two contributers to -- had already written the essay that I was going to. Of, course, they did a lot more research than I was going to do, but they addressed the very same issues.

Under their subheading "Was the Signature Gathering Process Proper?", they point out that California's recall law demands that signature gatherers must be registered voters. This same requirement (though not a part of a recall statute) was overturned by the U.S. Supreme Court, in a case involving Colorado election law, in 1999.

If Davis could convince the California court that the requirement be stricken as unconstitutional, then the question over severability comes into play.
Meaning; if the court strikes a single section of a law, does the entire law fall, or only the offending section?

Philisophically, I oppose severability because bills are passed by legislatures in a finished form that has come to be after the haggling and bartering of the interested parties. A severed section might have been the only redeeming feature that gave the bill support from some key legislators, and so what remains is something on which they never would have voted "aye," and that would suck rocks.

I believe that severability amounts to a "line item veto" for the Court, and an Executive line-item veto has already been ruled unconstitutional because it puts the Chief Executive too much into the Legislative process, thus violating the principle of Seperation of Powers.

Ironically, it may be possible to overturn the entire century-old recall laws by simply arguing that the signature gathering process -- while more stringent than the recallers would like -- violates the 1st amendement Rights of non-registered voters.

While that's the gyst of what I wanted to write about, this is the paragraph in the linked essay that jumped out at me the most:

Section 11382 provides that "No vote cast in the recall election shall be counted for any candidate unless the voter also voted for or against the recall of the officer sought to be recalled." Put simply, this requirement conditions the right to vote for a successor to a recalled official on the voter's willingness to weigh in on the recall itself, by voting for or against the recall measure.

Is it just me, or is the language of the Statute put more simply than the authors' "simplification"?

Posted by Tuning Spork at August 11, 2003 07:48 PM
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