Reform California's Undemocratic Recall

 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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