- The Washington Times - Tuesday, July 29, 2003

From combined dispatches

SAN DIEGO — A federal judge struck down a portion of California’s recall law yesterday in a ruling that will not stop the Oct. 7 election to remove Gov. Gray Davis but will change the way the balloting is done.

U.S. District Judge Barry Moskowitz said voters will be allowed to cast a ballot for a potential successor to Mr. Davis, even if they do not vote on whether he should be removed from office.

Under the state law, voters could choose “yes” or “no” on whether Mr. Davis should be recalled. And only voters who cast a “yes” or a “no” could then choose a potential successor from a list on the same ballot.

Judge Moskowitz shot down the portion of the law that said voters who did not answer the first question would not have their votes on the second question tallied. He sided with plaintiffs, who said the voters should be allowed to choose their preferred successor to Mr. Davis even if they don’t make a decision on the recall.

“What is at stake is the right of a voter to decide who shall succeed the governor, if recalled. Every voter, whether they voted for or against that recall, has a paramount interest in choosing the person who will govern them,” Judge Moskowitz said.

Leslie Lopez, who argued on behalf of California’s secretary of state that the law was constitutional, declined to comment. The decision of whether to appeal is up to the secretary of state.

“The voters of California won,” said Shaun Martin, a University of San Diego School of Law professor, who filed the challenge with another professor. “This is just the right of every voter to vote how they choose: yes, no or abstain.”

The challenge brought by the legal scholars said the process unconstitutionally compels voters to choose on one matter to gain eligibility for another.

The California Attorney General’s Office supported the law as written.

Replacement candidates have until Aug. 9 to decide whether to run. Rep. Darrell Issa funded the recall drive and is the only declared Republican candidate.

Yesterday, multimillionaire Republican Bill Simon Jr., who ran against Mr. Davis and lost in November, filed papers with the Board of Elections in preparation for trying once again.

A senior adviser to Arnold Schwarzenegger said Monday that the actor, a Republican activist, is leaning against running in the Oct. 7 recall election, but no final decision has been made. He could decide by the end of the week, the adviser said, speaking on the condition of anonymity.

Former Los Angeles Mayor Richard Riordan, a Republican, has said he will look hard at running if Mr. Schwarzenegger does not.

Republicans also considering are state Sen. Tom McClintock and former U.S. Rep. Michael Huffington.

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