As signatures start being gathered this weekend to recall San Diego mayor Bob Filner, the big question is whether the recall process of the city is constitutional.

In San Diego, like in California law up until 2003 (first in the constitution and then in statute), a voter is required to vote either “yes” or “no” on whether an official should be recalled before they may vote on their preferred candidate for successor should the recall succeed. (San Diego Municipal Code sec. 27.2726).

Requiring a voter to vote on the yes/no question before expressing candidate preference was held to be unconstitutional by a federal court in 2003 during the recall of Governor Gray Davis. Thus, San Diego city attorney Jan Goldsmith has told the council that it needs to update its code to comply with the federal court decision. Critics of the recall of Filner, including those that want him to resign to give Democrats a better chance of holding the mayor’s office after a special election, point to Goldsmith’s memo and argue that should the recall qualify, it will be stopped by a federal judge.

However, that is unlikely. The more likely scenario will be what the court did in 2003. It essentially required all votes to be counted. Courts don’t like to stop elections and prefer to find the least intrusive and most constitutional way to allow elections to proceed. Thus, if challenged, a court likely will just invalidate the provision requiring a voter to vote on yes/no before expressing a candidate preference.