CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 10/26/2023 1

Preclearance of a Gubernatorial Recall Election 

Salazar v. Monterey County (5:03-cv-3584) and Oliverez 

v. California (5:03-cv-3658) (Jeremy Fogel, N.D. Cal.) and 

Hernandez v. Merced County (1:03-cv-6147) and Gallego 

 v. California (1:03-cv-6157) (Oliver W. Wanger, E.D. Cal.) 

When the state set a special election on whether to recall the governor, a ballot initiative was moved from a primary election to the 

earlier special election. Separate federal cases alleged that the recall 

and the early ballot initiative could not be held because they had 

not been precleared pursuant to section 5 of the Voting Rights Act 

as required for four of California’s counties. The state obtained preclearance just as a three-judge district court met to review the case. 

The judge presiding over two similar cases in another of the state’s 

districts allowed the court presiding over the cases filed earlier to 

decide the issues. 

Subject: Recall elections. Topics: Section 5 preclearance; threejudge court; enjoining elections; news media; ballot measure. 

Three voters in Monterey County, California, filed a federal complaint in the 

Northern District of California’s San Jose courthouse on August 1, 2003, 

complaining that it was invalid for the state to move a ballot initiative from a 

March 2, 2004, primary election to an October 7, 2003, special election because the change had not been precleared pursuant to section 5 of the Voting 

Rights Act, as required for elections in Monterey County.1 With their complaint, the plaintiffs filed a motion for a temporary restraining order and a 

preliminary injunction2

 and a request for a three-judge district court.3 The 

court assigned the case to a magistrate judge.4

 Three days later, in response to 

the plaintiffs’ declination to proceed before a magistrate judge,5 the court assigned the case to District Judge Jeremy Fogel.6

1. Complaint, Salazar v. Monterey County, No. 5:03-cv-3584 (N.D. Cal. Aug. 1, 2003), 

D.E. 1; see Voting Rights Act of 1965, Pub. L. No. 89-110, § 5, 79 Stat. 437, 439, as amended, 

52 U.S.C. § 10304 (requiring preclearance of changes to voting procedures in jurisdictions 

with a certified history of discrimination and requiring that preclearance disputes be heard 

by a three-judge district court). 

On June 25, 2013, the Supreme Court declined to hold section 5 unconstitutional, but the 

Court did hold unconstitutional the criteria for which jurisdictions require section 5 preclearance. Shelby County v. Holder, 570 U.S. 529 (2013). 

2. Motion, Salazar, No. 5:03-cv-3584 (N.D. Cal. Aug. 1, 2003), D.E. 3. 

3. Request, id. (Aug. 1, 2003), D.E. 6. 

4. Scheduling Order, id. (Aug. 1, 2003), D.E. 2. 

5. Declination, id. (Aug. 4, 2003), D.E. 7. 

6. Reassignment Order, id. (Aug. 4, 2003), D.E. 9. 

Tim Reagan interviewed Judge Fogel for this report at the Federal Judicial Center on August 2, 2012. Judge Fogel was the Center’s director from October 3, 2011, through his retirement from the bench on September 14, 2018. Federal Judicial Center Biographical Directory of Article III Federal Judges [hereinafter FJC Biographical Directory], www.fjc.gov/ 

history/judges; see Supreme Court Press Release, July 25, 2018, www.fjc.gov/sites/default/ 
Preclearance of a Gubernatorial Recall Election 

2 Federal Judicial Center 10/26/2023 

On August 5, another three Monterey County voters filed a federal complaint challenging on section 5 grounds the special election itself—an election on a petition to recall the governor.7

 The court assigned the case to 

Judge Susan Illston in San Francisco.8 On August 6, the plaintiffs filed a notice that their case was related to Judge Fogel’s case.9

 On August 7, the recall 

plaintiffs filed a motion for a temporary restraining order and a preliminary 

injunction.10 On August 11, Judge Fogel determined that the second case was 

related to the one already before him, and so he took assignment of the second case.11

On the morning of August 15, Judge Fogel heard the motions for immediate injunctive relief.12 Judge Fogel began by observing that absentee voting 

in the October 7 election would begin on September 8, and even earlier than 

that for overseas voters.13 After the hearing, Judge Fogel issued temporary 

restraining orders.14 He enjoined Monterey County “from mailing absentee 

ballots to overseas voters registered to vote in Monterey County until Section 

5 preclearance has been obtained or until further order of the Court.”15 Judge 

Fogel also set a hearing for August 29, at which the defendants would show 

cause, if any, why they should not be enjoined from accepting ballots in the 

special election absent preclearance.16

On August 21, Judge Fogel requested that the circuit’s chief judge appoint a three-judge panel,17 which she did on the following day.18

Judge Fogel’s approaches to both the pending election and his work on 

the case before the three-judge panel would act were similar: apply the law, 

files/07.25.18-Press%20Release-FJCAnnouncement.pdf (announcing General John Cooke as 

Judge Fogel’s successor). 

7. Complaint, Oliverez v. California, No. 5:03-cv-3658 (N.D. Cal. Aug. 5, 2003), D.E. 1; 

see Claire Cooper, Big Names Prepare for Election, Sacramento Bee, Aug. 6, 2003, at A3. 

The cases before Judge Fogel did not concern California’s three other counties covered 

by section 5: Kings, Merced, and Yuba. Temporary Restraining Order at 2 n.1, Oliverez, No. 

5:03-cv-3658 (N.D. Cal. Aug. 15, 2003), D.E. 20 [hereinafter Oliverez Temporary Restraining 

Order], 2003 WL 22025009; Temporary Restraining Order at 2 n.1, Salazar, No. 5:03-cv3584 (N.D. Cal. Aug. 15, 2003), D.E. 20 [hereinafter Salazar Temporary Restraining Order], 

2003 WL 22025010. 

8. Scheduling Order, Oliverez, No. 5:03-cv-3658 (N.D. Cal. Aug. 5, 2003), D.E. 2. 

9. Notice of Related Cases, id. (Aug. 6, 2003), D.E. 3. 

10. Motion, id. (Aug. 7, 2003), D.E. 4. 

11. Order, Salazar, No. 5:03-cv-3584 (N.D. Cal. Aug. 11, 2003), D.E. 13. 

12. Transcript, id. (Aug. 15, 2003, filed Aug. 21, 2003), D.E. 28; Minutes, id. (Aug. 15, 

2003), D.E. 19. 

13. Transcript, supra note 12, at 10–11. 

14. Oliverez Temporary Restraining Order, supra note 7; Salazar Temporary Restraining 

Order, supra note 7; see Peter Fimrite, Federal Judge Warns He May Postpone Election, S.F. 

Chron., Aug. 16, 2003, at A1.

15. Oliverez Temporary Restraining Order, supra note 7, at 4; Salazar Temporary Restraining Order, supra note 7, at 4. 

16. Oliverez Temporary Restraining Order, supra note 7, at 4; Salazar Temporary Restraining Order, supra note 7, at 3–4. 

17. Letter, Salazar, No. 5:03-cv-3584 (N.D. Cal. Aug. 21, 2003), D.E. 25. 

18. Order, id. (Aug. 26, 2003), D.E. 40. 
Preclearance of a Gubernatorial Recall Election 

Federal Judicial Center 10/26/2023 3

but do no harm.19 On the one hand, he wanted to interfere with the election 

as little as possible; on the other hand, he wanted to avoid tying the panel’s 

hands unnecessarily.20

The three-judge court heard argument on August 2921 and ordered additional argument for September 5.22 The defendants wanted more time, so the 

court gave them as much as it could while still allowing for the possibility of 

effective relief, if necessary.23

The recall case drew a lot of public attention.24 Three-judge court proceedings were held in the ceremonial courtroom, and a second courtroom 

was used as an additional listening site.25 The circuit judge on the panel traveled from Sacramento for the proceedings.26

On September 5, the court denied the plaintiffs injunctive relief, because 

by then California had received preclearance for all aspects of the special 

election except for the consolidation of polling places in Monterey County, 

and the county agreed to forego the consolidation and to provide additional 

bilingual poll workers at the polls.27 The court dismissed the actions as moot 

on November 12.28 On February 6, 2004, the parties filed an approved settlement agreement on an award of attorney fees.29

Meanwhile, actions concerning section 5 preclearance for the ballot initiative30 and the gubernatorial recall31 in Kings County and Merced County 

19. Interview with Hon. Jeremy Fogel, Aug. 2, 2012. 

20. Id. 

21. Minutes, Oliverez v. California, No. 5:03-cv-3658 (N.D. Cal. Aug. 29, 2003), D.E. 28; 

Minutes, Salazar, No. 5:03-cv-3584 (N.D. Cal. Aug. 29, 2003), D.E. 59. 

22. Order, Oliverez, No. 5:03-cv-3658 (N.D. Cal. Aug. 29, 2003), D.E. 27, 2003 WL 

22047533; Order, Salazar, No. 5:03-cv-3584 (N.D. Cal. Aug. 29, 2003), D.E. 58, 2003 WL 

22047535; see Claire Cooper, Court Rulings Delayed a Week, Sacramento Bee, Aug. 30, 2003, 

at A3. 

23. Interview with Hon. Jeremy Fogel, Aug. 2, 2012. 

24. Id. 

25. Id. 

26. Id. 

27. Order Oliverez, No. 5:03-cv-3658 (N.D. Cal. Sept. 5, 2003), D.E. 30; Order, Salazar, 

No. 5:03-cv-3584 (N.D. Cal. Sept. 5, 2003), D.E. 75; see Herbert A. Sample, Voting Rights 

Challenge Settled: Federal Officials, Judges and Monterey County Reach Accord Over Election 

Plans, Sacramento Bee, Sept. 6, 2003, at A3; Mark Simon, Judges Kill Rights Suit, Back Recall 

on Oct. 7, S.F. Chron., Sept. 6, 2003, at A11. 

28. Order Oliverez, No. 5:03-cv-3658 (N.D. Cal. Nov. 12, 2003), D.E. 36; Order, Salazar, 

No. 5:03-cv-3584 (N.D. Cal. Nov. 12, 2003), D.E. 83. 

29. Docket Sheet, Oliverez, No. 5:03-cv-3658 (N.D. Cal. Aug. 5, 2003) (D.E. 44); Docket 

Sheet, Salazar, No. 5:03-cv-3584 (N.D. Cal. Aug. 1, 2003) (D.E. 94). The agreement is not 

available on PACER. 

30. Complaint, Hernandez v. Merced County, No. 1:03-cv-6147 (E.D. Cal. Aug. 25, 

2003), filed as Ex. 2, Notice, Salazar, No. 5:03-cv-3584 (N.D. Cal. Aug. 28, 2003), D.E. 46 

[hereinafter Aug. 25, 2003, Related Case Notice] (noting related cases filed in another district); Docket Sheet, id. (Aug. 25, 2003) [hereinafter Hernandez Docket Sheet]. 

31. Complaint, Gallegos v. California, No. 1:03-cv-6157 (E.D. Cal. Aug. 25, 2003), filed as

Ex. 1, Aug. 25, 2003, Related Case Notice, supra note 30; Docket Sheet, id. (Aug. 25, 2003) 

[hereinafter Gallegos Docket Sheet]. 
Preclearance of a Gubernatorial Recall Election 

4 Federal Judicial Center 10/26/2023 

were filed in the Eastern District of California on August 25, 2003, and assigned to Judge Oliver W. Wanger.32 On August 29, Judge Wanger requested 

a three-judge court.33 He set a temporary-restraining-order hearing for September 3.34 Judge Wanger was mindful of the competing tensions of section 

5’s requirements and the lateness of the actions’ filings, especially considering the substantial experience with election law by one of the plaintiffs’ attorneys.35 Judge Wanger was aware of the earlier cases filed in the Northern 

District, but his cases included matters that applied specifically to the counties of Kings and Merced.36

As with Judge Fogel’s cases, preclearance mooted Judge Wanger’s cases. 

Pursuant to a faxed letter from counsel, the September 3 hearing was canceled,37 and the plaintiffs voluntarily dismissed their actions.38

On October 7, the ballot initiative, proposition 54, which would have 

stopped the state from collecting most racial and ethnic data, failed.39 In addition, Governor Gray Davis was recalled and Arnold Schwarzenegger was 

elected as his replacement.40

32. See Order, id. (Aug. 27, 2003), D.E. 4 (determining that the two cases are related and 

should be assigned to the same judge); see also Aug. 25, 2003, Related Case Notice, supra

note 30. 

Tim Reagan interviewed Judge Wanger for this report by telephone on August 13, 2012. 

Judge Wanger retired from the bench on October 1, 2011, to return to private practice. FJC 

Biographical Directory, supra note 6; Wanger Jones Helsley PC, wjhattorneys.com; see John 

Ellis, Loss of Judge Will Further Clog Fresno Court, Fresno Bee, Sept. 16, 2011. 

33. Request, Hernandez, No. 1:03-cv-6147 (E.D. Cal. Aug. 25, 2003), D.E. 5. 

34. Order, id. (Aug. 31, 2003), D.E. 17. 

35. Interview with Oliver W. Wanger, Aug. 13, 2012 (noting how important it is for the 

court to understand the history of an election case, including its prelitigation history and the 

history of related litigation, and how difficult it is to master this history in a short period of 

time). 

36. Id. 

37. Gallegos Docket Sheet, supra note 31 (D.E. 18); Hernandez Docket Sheet, supra note 

30 (D.E. 18). 

38. Dismissal, Gallegos v. California, No. 1:03-cv-6157 (E.D. Cal. Sept. 22, 2003), D.E. 23; 

Dismissal, Hernandez, No. 1:03-cv-6147 (E.D. Cal. Aug. 25, 2003), D.E. 23. 

39. See Stephen Magagnini, Prop. 54 Soundly Beaten, Sacramento Bee, Oct. 8, 2003, at 9; 

Propositions 53 and 54, L.A. Times, Oct. 8, 2003, at 26; Tanya Schevitz, Prop. 54 Defeated 

Soundly, S.F. Chron., Oct. 8, 2003, at A12. 

40. See Michael Finnegan, Gov. Davis Is Recalled; Schwarzenegger Wins, L.A. Times, Oct. 

8, 2003, at 1; Margaret Talev, It’s Arnold: Schwarzenegger Coasts to Victory as Davis Is Ousted 

in Historic Vote, Sacramento Bee, Oct. 8, 2003, at 1.