The ability to recall elected officials was supposed to make
California’s political system more democratic. Those paying attention have
become aware of how truly dysfunctional the California recall process is, now
with Gavin Newsom fixed in its sites. The California recall has a combination
of features that gives a minority party, in this case the Republicans, a good chance
of grabbing power without majority support.
In order to appreciate California’s uniquely undemocratic
recall process, it’s useful to contrast that process with those of other
states. According to the website of the National
Conference of State Legislatures, and some additional research, almost all the
19 states that permit recall of state officers can be divided into three
groups: (1) five states have a single, simultaneous recall and replacement
election, in which the officer subject to the recall appears on the ballot
alongside the candidates seeking to replace him or her, and the recall will
fail if the officer gets more votes than the replacement candidates; (2) seven
states have a recall election held alone and, if successful, a subsequent
special replacement election; (3) in five states, the replacement is appointed
through various means to serve until the next regular election, and there is a
requirement that the replacement candidate be of the same party as the
candidate recalled. (See also AS 15.45.330; ORS 236.600.)
Only California and Colorado belong to a fourth group that
hold simultaneous recall and replacement elections in which the office holder
subject to the recall is not permitted to appear as a replacement candidate.
What does this mean? Most obviously, that a replacement
candidate can be elected who has far less support than the recalled officer.
Newsom can lose the recall if he gets only 49% of the vote, but, because he is
denied access to the replacement side of the ballot, and because his
replacement only needs more votes than other replacement candidates, the new
governor can win with only 25% of the vote.
This feature is even more problematic when combined with the
fact that the recall and replacement elections are held simultaneously. If a separate
replacement election was held, as in seven other states, the party of the
recalled officeholder could organize behind a candidate who would seriously
contend for replacement of the recalled officeholder. But with the simultaneous
recall/replacement election, there is a strong incentive for the party of the
officeholder to refrain from conducting an organized campaign on the
replacement side of the election, to avoid diluting the anti-recall message of
the election, as can be seen with the current recall. Holding the recall and
replacement elections simultaneously, and then not allowing the officeholder to
appear on the replacement ballot, weakens the majority party’s ability to fend
off a minority party take over.
If that were not enough, the California recall has two
additional problematic features. California has among the lowest signature
thresholds for qualifying a recall – just 12 percent of the number of voters
who voted in the last election. Of the 19 recall states, only Montana has a lower
threshold (10 percent), while 11 states have a requirement of 25 percent or
higher. And finally, recall elections, being the only thing on the ballot, have
notoriously low turnout, and allow motivated minorities a disproportionate
chance of winning the day. A recall process could hardly have been better
designed to facilitate a minority party power grab.
Of course, nothing of the kind was on the minds of the
people who designed the recall process 100 years ago. This was a time when the
major parties’ ideological polarization was not great – Hiram Johnson, the main
proponent of recall and other forms of direct democracy, was a progressive
Republican. The recall supporters thought of the recall as a hyper-democratic
solution to the problem of officeholders who had betrayed their constituents in
favor of special interests like the Southern Pacific Railroad. They did not
contemplate its misuse as a tool of partisan gamesmanship. As Ezra Klein has
observed, the California recall process is one of those “well-meaning ideas to
increase democratic participation that have decayed into avenues that organized
interests use to foil the public will.”
In a recent article, law
professors Irwin Chemerinsky and Aaron Edlin argued that the California recall
process is unconstitutional because, as noted, it allows a replacement
candidate to win the election with fewer votes than the votes opposing the
recall, if the recall opposition gets fewer than 50 percent of the vote. That
circumstance violates the one-person-one-vote principle, they contend, diluting
the vote of recall opponents. I don’t think courts would buy that argument,
because they would likely look on the recall and replacement elections as two
elections, or two distinct votes, that happen to be held simultaneously. Seen
in this way, there is no voter dilution. Every vote counts equally in each of
the two elections.
Still, even if not unconstitutional, this recall/replacement
system has the makings of an electoral travesty. It is to be hoped that the
current recall, which polling shows is likely to be very close, will be
defeated. But if is, just the fact that a Trump Republican came close to being
elected governor in a state voting 2-1 against Trump will perhaps motivate a
reform of the recall system. It is not the recall itself, but the particularly
bad features of the California recall process, that make it potentially
undemocratic. A recall defeat will set a good precedent and perhaps discourage
future recalls, but constitutional reform of the recall process is still
needed.
Robert Katz
Robert Katz served as a staff attorney and supervising attorney at the California Supreme Court from 1993-2018. Before that he was in private practice representing public agencies, and worked as a newspaper reporter covering local government in Santa Cruz County.
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