Abcarian

MEMORANDUM **

Plaintiff-Appellant Dick Abcarian challenges Appellees’ plan to place the names of replacement candidates on the ballot for the October 7, 2003 election whether to recall California Governor Gray Davis. He contends that if the Governor is recalled, the resulting vacancy should be filled not by a replacement candidate but instead by the current Lieutenant Governor. According to Abcarian, disrupting his legitimate expectation in this automatic succession by holding an election for a replacement would violate his federal due process rights.

Abcarian appeals from the district court’s denial of his application for a temporary restraining order. The district court determined that Abcarian was unlikely to succeed on the merits of his claim in light of a recent California Supreme Court en banc decision interpreting the operative provisions of the California Constitution as permitting the gubernatorial recall ballots to include the names of successor candidates. See Frankel v. Shelly, Case No. S117770, Aug. 7, 2003.

By holding that Frankel controls, the district court decided the merits of the case in denying the petition for temporary relief. This court has jurisdiction…