SACRAMENTO, Calif. (CN) --- California Governor Gavin Newsom’s attorney on Friday took the blame for a sloppy mistake that could cost the governor his party affiliation on recall ballots, telling a state judge the flub must be corrected to prevent voter confusion.
During oral arguments in the governor’s election lawsuit, Newsom’s attorney urged the judge to allow California Secretary of State Shirley Weber to overlook an election filing deadline and give the Democrat a "D" beside his name on the to-be-printed recall ballots. Thomas Willis argued there is still plenty of time to correct the mishap as ballots won’t be printed for at least another month.
“This deadline is completely divorced from any election date; it’s a deadline that serves no elections administrative purpose,” Willis said.
The obscure filing deadline and Willis’ mistake have added another twist to the Newsom recall that has garnered nationwide intrigue.
In an unexpected development that drew puzzled reactions from pundits and politicians around the state, Newsom last week revealed a paperwork flub was going to prevent him from carrying a party label on the recall ballot.
While responding to the recall petition back in February 2020, Newsom’s legal team didn’t file a party preference form with elections officials. After realizing the mistake 16 months later, Newsom asked Weber to correct the error but was rejected.
Weber determined Newsom had missed the filing deadline and thus should be listed on the ballot without a party label. Newsom, who appointed Weber in 2020, responded days later with the lawsuit.
Newsom’s lawsuit represents the first major challenge to the recall process changes that were unanimously approved by lawmakers.
The Democratic governor claims the filing deadline --- enacted through an elections law he signed in 2019 --- is arbitrary and gives recall candidates a decided advantage over incumbents. Newsom wants Sacramento County Superior Court Judge James Arguelles to intervene and grant his late request via the doctrine of substantial compliance.
Throughout Friday’s hour-long hearing, Arguelles and the various parties to the lawsuit agreed the case hinges on whether the substantial compliance doctrine applies. The judge concluded the hearing without issuing a ruling, but said a written order will come Monday.
Newsom argued the error was made in “good faith” and enforcing the filing timeline would undermine the integrity of a law intended to give voters more information. He wants the judge to consider the legislative analysis and history of Senate Bill 151 in deciding the matter.
Meanwhile the recall proponents and Olympian Caitlyn Jenner accused Newsom of putting himself above the very law he signed.
“It comes down to whether the governor of California has to follow the unambiguous law,” countered Eric Early on behalf of the Recall Governor Gavin Newsom group. “No party appearing today has argued the statute --- 11320(c) --- is ambiguous.”
In the past, party preferences for officeholders facing recall weren’t listed on the ballot —as was the case in 2003 when former Governor Gray Davis was recalled. But that is no longer the case thanks to SB 151.
“The officer shall inform the secretary of state whether the officer elects to have a party preference identified on the ballot by the deadline for the officer to file an answer with the secretary of state,” the statute reads.
Arguelles, who former President Donald Trump unsuccessfully tried to promote to the Eastern District of California last year, questioned whether he can look to the legislative history considering the clear-cut language of the statute.
Newsom’s team responded the judge can and should dig deeper per the substantial compliance doctrine.
“The Legislature has determined that including the party preference of a recall subject allows voters to make an informed decision when they vote,” said Willis.
Weber is named in the lawsuit but her attorney Kevin Calia didn’t trade barbs or explicitly advocate for Newsom or the recall proponents. He did however signal Weber is in favor of making the change and will gladly implement Newsom’s request if directed by the court.
“We think the best way to jealously guard the people’s right is to give as much information to voters as possible,” Calia told Arguelles.
The legal fight over whether Newsom should get a party label is one of the final pieces to be set in the pending recall election.
Last week Weber officially certified the recall and Lt. Gov. Eleni Kounalakis quickly set the statewide election for Sept. 14. Lawmakers and the state’s financial advisers estimate the recall could cost taxpayers more than $275 million and like the 2020 general election, all registered voters will receive a mail ballot.
Rather than a traditional November date, state Democrats believe Newsom stands a better shot at defeating the recall at the end of the summer. They pressed elections officials to push up the date and even passed legislation --- that Newsom OK'd --- to speed up the process.
State Republicans and many of the candidates jostling to replace Newsom have bemoaned the election changes, accusing the governor and leading Democrats of “changing the rules during the middle of the game.”
Meanwhile the number of candidates entering the recall fray is nearing 100, headlined by Republicans like former San Diego mayor Kevin Faulconer, Sacramento-area Assemblyman Kevin Kiley and Jenner.
Judge Arguelles capped Friday’s hearing by questioning the significance of Newsom’s ballot label.
Newsom was elected by a landslide and is more than halfway through his first term as the governor of the nation’s most populous and most progressive state.
“Isn’t there a presumption people will know his party and it’s not as important as the recall candidates?” asked Arguelles.
Calia responded, “Many voters will know Governor Newsom’s party preference, but I think you can tell from the arguments of all sides there is concern that some slice of voters who might not immediately know and for whom that information might be important one way or other."
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