Judge Strikes Down Portion of Recall Law

A federal judge on Tuesday struck down a portion of California’s recall law as unconstitutional, saying voters will be allowed to cast a ballot for a potential successor to Gov. Gray Davis even if they don’t vote on whether he should be recalled.

The decision does not stop plans to hold a recall election Oct. 7, but will change the way ballots are counted.

Under the state law, voters could choose “yes” or “no” on whether Davis should be recalled. Only if a “yes” or a “no” vote was cast could voters choose a potential successor from a list on the same ballot. A voter could select their choice of successor even if the voter opposed the recall.

But U.S. District Judge Barry Moskowitz shot down a portion of the law that said voters who didn’t answer the first question would not have their votes on the second question tallied. He sided with plaintiffs who said voters should be allowed to choose their preferred successor to Davis even if they didn’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,” said Moskowitz.

Leslie Lopez, who argued on behalf of the secretary of state that the law was constitutional, declined to comment. A decision to appeal will have to be made by Kevin Shelley, the secretary of state.