Judge to decide if Newsom can add ‘Democrat’ to recall ballot

A Sacramento County Superior Court judge promised he would make a ruling Monday on Gov. Gavin Newsom's petition to get his party designation on the September recall ballot.

But proposed intervenors in the case proved one of their contentions at Friday's hearing before Judge James P. Arguelles: that Secretary of State Shirley Weber's office would not represent their interests in keeping Newsom's Democratic Party registration off the ballot. If Newsom's side ultimately prevails, it may be because Weber's attorney provided the winning arguments.

The sides argued the meaning and intent of SB 151. This is a law Newsom signed in 2019 allowing candidates in recall elections to list their party preference but providing deadlines for the paperwork.

Newsom's law firm, Olson Remcho LLP, filed the petition after its attorneys discovered they had left Newsom's party off campaign paperwork filed with the secretary of state's office last year. Olson Remcho partner Thomas A. Willis personally took responsibility for the oversight during the hearing in Newsom v. Weber, 34-2021-80003666-CU-WM-GDS (Sac. Super. Ct., filed June 28, 2021).

Two sets of intervenors then filed motions to join the case, each arguing Weber's office would not represent their interests. Eric P. Early, managing partner with Early Sullivan Wright Gizer & McRae LLP in Los Angeles, represented the California Patriot Coalition-Recall Gavin Newsom Committee.

Bradley A. Benbrook with Benbrook Law Group in Sacramento represented Republican candidate Caitlyn Jenner.

Early argued the court should rely on the "unambiguous language" of the statute. He also said Newsom was not in "substantial compliance" with the law. The key case Newsom's team cited, Barnes v. Wong, 33 Cal. App. 4th 390 (1995), Early said, involved a petitioner who missed a deadline by 5 hours.

"There was no substantial compliance," Early said. "We're talking about a petition here who missed [the deadline] by 16 months."

Later, Early argued, "'Shall' is as mandatory as it gets in our statutes. ... This might be a bitter pill for the governor to swallow, but swallow it he must."

"There's nothing remotely to suggest he was close to complying," Benbrook said. "He wants a do over. He wants relief from the statute. ... The Legislature could have said the secretary of state has the discretion to accept late filings, but they chose the system they chose."

Willis argued the intervenors misrepresented the substantial compliance standard.

"The standard is a realistic evaluation of whether the defect in question frustrates the substantial purpose of the underlying statute," Willis said. "If so, it doesn't matter what the defect is. It has to be excused."

Willis also noted the recall hadn't qualified when his side filed the campaign paperwork.

"This deadline is divorced from any election date," Willis said. "It is a deadline that serves no administrative purpose."

According to Weber's written response, filed Wednesday by Kevin A. Calia with Boersch & Illovsky LLP in Oakland, "The secretary of state agrees that it would be unfortunate if an error by the governor's attorney had the effect of depriving voters of accurate information on the ballot regarding Governor Newsom's party preference." But Calia then wrote that Weber "has no statutory authority to excuse compliance with the deadline" unless ordered to do so by the court.

"I know your petition kind of lined up with the petitioner's pleadings," Arguelles told Calia.

"We think the best way to jealously guard the people's right is to give voters as much information as possible," Calia replied.

Later in the hearing, Calia noted the Sept. 14 recall election is the first under the new law and the first statewide recall since 2003, adding that Newsom's lawyers sent a letter to Weber's office once they realized the error. He also said candidates to replace Newsom must indicate their party preference, and still have until July 16 to change the party that appears next to their name on the ballot.

"I wasn't aware of that," Arguelles replied.

Benbrook argued there are several ways in which election law and deadlines treat incumbents and other candidates differently in recall elections.

"There was never any concern in the Legislature that the statute might be unconstitutional because we treat people differently," Benbrook said. "What they're really saying is he didn't pay any attention to this filing. He just signed it."

Near the close, Calia argued all the parties know voters will be less informed if the intervenors win.

"I agree with your honor's point that many, many voters will know Gov. Newsom's party preference," Calia said. "But I think you can tell from the arguments of all sides that there is some concern that there is some slice of voters who might not immediately know and for whom that information might be important."