Tuesday, November 18, 2008

Will Prop. 8 Decision Spawn a Recall?

This article from the Los Angeles Times discusses the possibility of a recall should the California Supreme Court invalidate Proposition 8. It quotes Justice Kaus' famous remark about the pendency of judicial elections being a "crocodile in the bathtub." For those too young to recall, Justice Kaus was referring to the Court's decision in Brosnahan v. Eu, 31 Cal. 3d 1 (1982), where the Court refused to remove another Proposition 8 (that dealt with criminal justice) from the ballot on single-subject grounds. (The measure passed and the Court upheld it against a single-subject and other challenges in Brosnahan v. Brown, 32 Cal. 3d 236 (1982).)

Rick Hasen has also linked to this article on his election law blog (here). His thought that the Court was likely to summarily deny the petitions seems wrong--there's too much of a tradition in California of immediate post-election review by the California Supreme Court for that to happen. Rightly or wrongly, a summary denial would be seen as either a punt to the Legislature or a clear indication that the Court finds the case meritless. A summary denial is even less likely to happen now that the AG has weighed against it (as have some of the Prop. 8 supporters).

We'll probably know more this afternoon, after the Court holds its weekly conference. My prediction is that the Court will deny a stay and set a briefing schedule.

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