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3 Gray Areas in the City's Recall Process

The city’s recall rules could complicate any campaign to remove Mayor Bob Filner from office.

Mayor Bob Filner’s decision to seek treatment instead of resigning Friday leaves San Diegans with only one way to remove their city’s most powerful politician: a recall election.

At least one effort is already under way but whether it or any other campaign succeeds could depend on the interpretation of three key provisions in the city’s election code.

Here’s a look at three gray areas in the city’s municipal code that could create confusion.

Can multiple groups of recall proponents circulate petitions at the same time?

The city’s municipal code suggests an official can only be recalled if no other petition has been filed within the last six months.

What it doesn’t clarify is what happens if multiple groups are circulating petitions.

LGBT activist Stampp Corbin began his recall campaign Friday when he published a notice of his intent to circulate petitions.

Land-use consultant Michael Pallamary has also said he’s organizing a recall campaign, though it’s unclear whether he’s formally begun that process.

Corbin said he’d allow Pallamary’s group to circulate petitions for his effort, but if Pallamary turns in his own paperwork it could further complicate the situation.

Pallamary could not be reached Friday.

When do organizers really need all those signatures?

City rules say recall organizers have 39 days to collect at least 101,597 valid signatures. But a specific provision raises doubts about what happens after that.

Here’s that portion of the city’s municipal code:

Recall Provision re: Signatures

So when do you need to stop collecting signatures? Can recall organizers continue to collect signatures if the city clerk finds they don’t have enough valid ones?

Given the vague wording of the provision, there may be a window to continuously collect signatures far beyond the 39 days the city’s municipal code initially lays out.

Is the city’s recall process even constitutional?

Voters are faced with two questions on a recall ballot: Should the official in question be recalled and if so, who should take over for her?

Here’s what the city’s municipal code has to say about that:

Recall Provision re: Votes

So San Diegans can only vote on a possible successor if they have also voted on whether the person who’s currently in the post should be booted from office. Both questions are on the same ballot. 

This is unlikely to withstand a court challenge.

A federal judge struck down identical language in the California state Constitution ahead of then-Gov. Gray Davis’ ouster in a 2003 recall election.

Confusion and expensive litigation are likely if the City Council doesn’t fix this language ahead of a recall.

Councilman Mark Kersey said as much in a Friday memo.

He called on City Council President Todd Gloria to schedule a Council discussion of the city’s recall rules as soon as possible.

“Given the events of the past few weeks and the strong possibility of a recall petition’s being circulated, we have an obligation to reconcile our Municipal Code with state law,” Kersey wrote. “If we fail to do so, the city could be forced to defend a lawsuit – and to cover legal fees in the likely event that the plaintiff prevails,” Kersey wrote.

The city attorney’s office weighed in Friday afternoon with a memo that recommends the city repeal the requirement that San Diegans vote on both the recall and a political successor. In the meantime, Deputy City Attorney Sharon Spivak wrote, the rule shouldn’t be enforced.

But Gloria’s spokeswoman said late Friday the suggested change is unlikely to appear on a City Council agenda until September, given the council’s August break.

Zachary Warma is the events and community manager for Voice of San Diego and Lisa Halverstadt is a reporter. You can contact them directly at zack@voiceofsandiego.org and lisa@vosd.org.

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