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Davis files suit to change, postpone recall election

Governor seeks March election date

California Gov. Gray Davis
California Gov. Gray Davis

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SAN FRANCISCO, California (CNN) -- Attorneys for California Gov. Gray Davis filed suit Monday to make two critical changes in the recall election, arguing that if the changes are not made, the vote will make Florida's 2000 presidential election fiasco "look like a cakewalk."

In the lawsuit filed with California's Supreme Court, the Democratic incumbent called for the vote to be delayed until March and for his name to be listed among the candidates seeking to replace him.

In the election currently scheduled for October 7, voters would make two decisions: whether to recall Davis and who should replace him. Because of California's rules over recall elections, Davis cannot appear along with other candidates on the second question.

If Davis were to be recalled, the candidate to replace him would be whoever receives a plurality -- not a majority. It is possible for Davis to receive 49.9 percent of the vote on the first question, and for a candidate who receives smaller percentage of the second vote to become the new governor.

"We think that's unfair -- it's unconstitutional," said attorney Robin Johansen. "The question we are asking the court to decide is, is this not a fundamental right of his supporters to have his name there? Our position is simple: in this election our voters should have a choice."

The lawsuit presents two key constitutional arguments as to why the vote should be delayed until March.

In an October vote, some precincts would not be open, inconveniencing large numbers of voters and making it more difficult for them to vote -- including voters in poorer areas, attorneys argued. Also, punch-card machines that have been decertified by the state would be used in October -- but by March of next year, all precincts will have new, acceptable machines.

Having the vote in October would violate the rights of many voters and leave questions as to whether the votes could be counted, the attorneys said.

"In Florida, the Supreme Court only intervened after the train wreck. ... What we've asked the court here is to avoid the train wreck," said Michael Kahn, another attorney for Davis.

Attorneys also said postponing until March would save the state tens of millions of dollars, because a presidential primary is already scheduled to be held then, and the recall questions would simply be added to that ballot.

It's an especially potent argument given the state's fiscal crisis, which lies at the heart of much discontent of Davis' performance as governor.

But the lawsuit also clearly has a political angle. Democratic leaders believe Davis' chances would be stronger in March, when Democratic turnout is expected to be high for the presidential primary. It would also give the embattled governor five more months to prove his leadership and work to fix the state's fiscal problems.

In the lawsuit, Davis asks the court to decide the case by August 31, when ballot pamphlets for the October election are to be printed.

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