Democrats force recall backers to fight another court battle

SACRAMENTO – Most recall elections are primarily about electoral politics, as both sides duke it out with the usual broadcast ads and ground campaigns. But the burgeoning Republican effort to recall Orange County’s Democratic Sen. Josh Newman has turned into an inside-the-Capitol political fight as well as a high-profile legal battle. It could be months before the matter is debated in the context of a traditional political campaign.

Newman was elected to the Fullerton-area Senate district last November, winning by fewer than 2,500 votes in a district with nearly even voter registration between the Democratic and Republican parties. Voters there have typically sent Republicans to the Legislature, so Newman’s win was viewed as an upset. It also helped Democrats gain supermajorities in the Legislature, which lets them approve tax increases without any GOP votes.

After Newman cast a deciding vote in favor of legislation that raises the gasoline tax by 12 cents a gallon and increases vehicle license fees, former San Diego councilman Carl DeMaio, a Republican, started a campaign to boot Newman from the Senate. State Democratic leaders claim that some recall backers misled voters into thinking the recall will repeal the transportation-tax hike, so they struck back with a measure they say is about upholding the integrity of the recall process.

They passed a bill earlier this summer that retroactively changes the state’s long-standing recall-election rules by adding months to the certification timeline. It primarily gives voters 30 days to rescind their recall-petition signatures. Republicans say the new law has nothing to do with recall integrity, but is a transparent attempt to delay the election until the June 2018 primary when Democrats are expected to fare better at the polls. They accuse the Democrats of rigging the election rules to help Newman.

The governor signed Senate Bill 96 in June, but the state’s Third District Court of Appeal put portions of it on hold earlier this month, ruling that it violates the single-subject rule requiring legislation to deal with only one topic. The court, however, didn’t halt the Democratic effort to slow the recall drive. After they returned from summer recess, legislators again used a trailer bill, which is supposedly reserved for budgetary clean-up language, to quickly pass a measure to again rewrite recall election law to help Newman survive a coming vote.

Signed into law by Gov. Jerry Brown, Senate Bill 117 seeks “to eliminate any issue as to whether the changes to recall petition procedures made by Senate Bill 96 are enacted in violation of the single subject rule” by expressing “the intent of the Legislature to repeal those provisions and reenact them in this act, which embraces only the subject of elections.”

After the bill became law, the Howard Jarvis Taxpayers Association and several voters again filed a lawsuit against Democratic Secretary of State Alex Padilla and the state Legislature to strike down the new law, which they say is unconstitutional.

The original lawsuit argues that “the attempted retroactive interference in a recall process that has already commenced for the express purpose of nullifying, through unreasonable delay, petitioners’ constitutionally-vested right, violates both due process and equal protection of the law.”

The new lawsuit says the new law “should not be permitted to prohibit (the secretary of state) from performing his ministerial duty, which at this point is the simple process of signing his name to a certificate to confirm what everyone knows, and indeed what the Respondent’s office has acknowledged: that the recall petition is sufficient to compel an immediate election.”

It also contends that the law should properly have been passed on a two-thirds vote rather than as majority-vote trailer bill. “While SB117 purported to address the single-subject problem of its predecessor,” the lawsuit argues, “the new bill does so in another unconstitutional vehicle – a ‘spot-bill’ designated as ‘related to the budget in the budget bill.’” But when the budget was adopted, “SB117 was not even identified as one of the budget-related trailer bills” and “had no substantive content.”

If the court rules in the group’s favor, Democrats could still appeal the decision to the California Supreme Court. Win or lose, the Democrats appear to be getting their way – using their fearsome political muscle to delay a recall of one of their senators. It’s the rare election case where the courts have as much influence as the voters.

Steven Greenhut is a Sacramento-based journalist. Write to him at [email protected].