A challenge of the petitions would face a difficult time contending with existing legal precedents, lawyers in the field said. State and federal courts have set the bar extremely high for challenges against expressions of direct democracy such as ballot initiatives and recall campaigns.
In at least two rulings, the U.S. Supreme Court has ruled that petition circulation was "core political speech" that should not be unduly restricted by states.
In a 1988 decision, Meyer vs. Grant, the court struck down Colorado's prohibition against paid signature drives for ballot initiatives. And in a 1999 decision, Buckley vs. American Constitutional Law Foundation Inc., the court threw out three controls Colorado had placed on its initiative petition process, including requirements that petition circulators be registered voters in the state where the petitions are being circulated -- a requirement that California still has in place but which has never been tested in court.
Any attempt to challenge the legality of the recall petition itself -- which accuses Davis of "gross mismanagement" of state finances -- would bring the governor into conflict with Shelley, a fellow Democrat.
Under state provisions for a recall, Shelley approved the petition's wording and format, including the precise spacing and margins laid down by the election code. Shelley rejected initial petitions submitted by recall organizer Ted Costa, a Sacramento anti-tax activist. One of the reasons cited was a missing period, Hiltachk said.
A potential problem area, however, could be petitions that were downloaded from the Web sites of the recall groups, said Terri Carbaugh, assistant secretary of state for communications. But Shelley will abide by an April 1980 finding by one of his predecessors setting aside the requirement that signatures must be gathered by a registered voter, Carbaugh said.
"It's the secretary of state's position that if a voter has signed a petition, that voter should not be punished for the circulator's mistake," she said. "We've reviewed [the finding] and concurred."
Another option for the anti-recall forces could be to target the validation of signatures in certain counties.
"If you're thinking about ways to throw sand on the railroad tracks, you could go to a county that was having problems and challenge their count," Feeney said. "I'm not sure what success you would have, but it could take some time."
