Possible recall agitators may face an even higher hurdle to ousting an elected official than the byzantine process of carrying out a recall election: A key component of the city’s election code likely wouldn’t hold up in court.

The recall of an official is a two-stage process: First, residents vote on whether a specific official should be recalled. Then there’s another vote on who should replace the ousted politician.

The city’s Municipal Code, which lays out the rules for the process, contains what could be a key flaw. Chapter 2, Article 7, Section 27.2726 of the law, states, under a heading “Validity of Votes Cast,” “No vote cast for a candidate shall be counted unless the voter also voted on the recall question.”

Basically, if you want to vote for a new official to replace the booted one, you have to have also voted on whether to recall the official in the first place.

That provision could spell trouble for the city — a federal court has already struck down a similar statewide rule.

Almost immediately after a date was set for the 2003 recall election that eventually ousted California Gov. Gray Davis, a group of voters from San Diego and Los Angeles filed a lawsuit in U.S. District Court challenging the California Election Code.

Section 11382 of the code stipulated 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” — language almost identical to San Diego’s Election Code.

The group of voters argued the provision violated their right to vote, as enshrined in the U.S. Constitution.

U.S. District Court Judge Ted Moskowitz’s ruling in the case, Partnoy v. Shelley (Kevin Shelley was the secretary of state at the time), was clear: The provision was unconstitutional because it served as “a severe restriction on their Constitutional right to vote.”

With the provision struck down, California voters in 2003 could weigh in on the question of Davis’s successor without having voted on the question of Davis’s recall itself.

The Partnoy decision only covered the constitutionality of the state Election Code section — it doesn’t invalidate recall processes in charter cities or counties. But legal experts consulted by Voice of San Diego agreed the very same arguments would likely strike down San Diego’s Municipal Code provision.

“It seems to me that precisely the same logic the judge used in Partnoy v. Shelley would apply to San Diego’s law as well,” said Professor Justin Levitt of Loyola Law School in Los Angeles. “If a federal court got a case attacking San Diego’s law, on the basis of Partnoy, I’d expect it to find San Diego’s law unconstitutional.”

Levitt said the city could face legal challenges for a number of different reasons before, during or after a recall election, depending on whether officials stuck to the provision. “The City Council might well avoid the time and expense of a lawsuit if they voted to repeal the provision,” he said.

Jim Sutton, an attorney who specializes in election and campaign law and who has worked in San Diego, agreed.

“It’s a slam-dunk winner lawsuit,” Sutton said. “The San Diego law is clearly unenforceable.”

Sutton also noted the city’s longstanding reluctance to amend laws that outside legal decisions have called into question before they become a problem.

“Until someone sues,” Sutton said, “the law is on the books.”

In this case, there’s an incentive for the council to act now: The city would be on the hook for the petitioner’s legal fees if it lost a challenge to the constitutionality of its laws.

Sutton said someone could challenge the provision even without a recall.

Jonathan Heller, communications director for City Attorney Jan Goldsmith, wouldn’t comment directly on the Partnoy decision and its possible impact on the city’s Municipal Code. He said the city attorney is in the process of reviewing the city charter and municipal code for possible amendments.

The city clerk’s office and the city attorney’s office are examining and updating the Municipal Code’s election guidelines for “internal consistency.” The city’s recall process is among the sections being reviewed, but there’s been no word on possible changes.

This puts the council in a bit of a bind. The council members can pray that a challenge to the law never materializes, or they can proactively rework the section while stoking further intrigue about a recall threat that so far exists only in whispers and hearsay.

But as long as Section 27.2726 stays on the books, the city runs the risk of facing a legal battle they’re likely to lose — one that would waste taxpayer dollars on the machinations of aggrieved interest groups and political conspirers.

Zachary Warma is the events and community manager for Voice of San Diego. You can reach him at zack@voiceofsandiego.org or 619-550-5664.

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Zachary Warma was formerly the events and community manager for Voice of San Diego.

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