Partnoy

MEMORANDUM DECISION AND ORDER GRANTING MOTION ON THE PLEADINGS AND DECLARING CALIFORNIA ELECTIONS CODE § 11382 UNCONSTITUTIONAL

I. INTRODUCTION

This case involves the recall election of California Governor Gray Davis which is currently set for October 7, 2003. By bringing this suit Plaintiffs are not, however, trying to halt or delay the recall election. Rather, Plaintiffs seek to have one discrete provision of the California Elections Code, involving how the votes are to be counted, declared unconstitutional. The challenged provision, section 11382 of the California Elections Code, states that “No vote cast in the recall election shall be counted for any candidate unless the voter also voted for or against the recall of the officer sought to be recalled.” The question before the Court is whether this provision violates Plaintiffs’ First and Fourteenth Amendment rights of free expression and their right to vote for the person who will govern them.

II. BACKGROUND

On July 23, 2003, the California Secretary of State certified that a petition to recall Governor Gray Davis had obtained the requisite number of signatures to require a recall election (“the Davis Recall”). Consistent…