Don't break California's recall by 'fixing' it

Don't break California's recall by 'fixing' it
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Following a second gubernatorial recall election in 18 years, there is now a move afoot to “recall the recall” in California, with numerous changes bandied about that could limit or effectively eliminate the recall. Politicians should be wary of such proposals: Some have serious disaster potential.

The changes being discussed range from increasing the signature amount needed to qualify a recall to the radical step of requiring a statutory cause (like requiring a showing of criminal action or malfeasance), which would effectively kill the recall in the state.

The most popular discussion centers on changing the voting method. Voters in the 2021 California recall election were surprised to learn that an official can be ousted with significantly more votes in their favor then the replacement candidate receives. That has indeed happened five times in the past ten years, including in state Sen. Josh Newman’s recall in 2018.

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A look around the U.S. shows that the plurality replacement is a relatively common method. The 19 states that allow gubernatorial recall elections employ four different methods:

  • Two states (California and Colorado) have a yes or no vote followed by a same day replacement.
  • Two states have a Yes or No vote followed by a replacement vote on a later date.
  • Four states have a new election.
  • 11 states appear to have a yes or no vote. The lieutenant governor automatically replaces a recalled governor, and other recalled officials generally are replaced by an appointment.

These procedures all have their pros and cons, but some commentators now argue for dumping the replacement election and having the law choose the replacement, treating the recall as a simple vacancy in the same manner of an impeachment.

That proposal would attempt to cure a claimed direct democracy defect with the least democratic option available. The “automatic replacement” method covers a political event with a gloss of respectability and a thin veneer of legality. It will make the recall into another impeachment process — one that history shows is a weak reed. By-law-replacement backers may hope it will cut down on recalls, but experience in other states shows that it will not stop recall attempts. On the local level, the same type of officials will continue to be targeted. But for future gubernatorial recalls, it may increase recall attempts.

Experience suggests this is so. In California’s two recall elections, only the governors were targets; there was no incentive for the proponents to target anyone else due to the state’s simultaneous replacement election system. But in the other two gubernatorial recalls the proponents (no doubt aware of the by-law replacement systems in those states) targeted other officials down the line, either the lieutenant governor or the entire line of succession.

In North Dakota in 1921, not only was the governor removed, but so were the attorney general and the agriculture commissioner. In 2012 in Wisconsin, Gov. Scott Walker (R) faced a recall, as did Lt. Gov. Rebecca Kleefisch — despite the fact that there was no need to recall her. Wisconsin used a new election model that would have provided Walker’s replacement. The lieutenant governor’s powers in the Wisconsin are fairly minimal; and yet the proponents still spent the time, effort, and money to gather another 900,000 signatures to get her on the ballot.

That proponents aren’t shy about removing multiple officials shouldn’t be a surprise. Multi-candidate recall attempts in different localities are the rule, not the exception. There have been 116 recall votes in California in the last 11 years: 32 instances saw more than one official on the ballot in that jurisdiction, compared to 27 times when only one official saw a vote.

Automatic replacement can cause its own problems. In 2019–21, 15 states saw recall attempts against governors. The two most serious attempts were in Oregon and Alaska, both of which are replace-by-law states. Oregon should be a chilling example for California Democrats considering a by-law replacement system. Oregon doesn’t have a lieutenant governor, so the secretary of state (a Republican) would have replaced a Democrat as governor. Adding a further complication, the secretary of state died in office and was replaced by another Republican. The state law suggested that the appointee could not succeed to the office, though the petitioners stated they would have challenged this result. A potential constitutional challenge was averted by the petitioners failing to get enough signatures.

Similarly, moving to an automatic replacement system on the local level requires careful consideration. In some states local governments have been paralyzed in their attempts to replace by law: In some cases, so many officials have been removed that the council cannot form a quorum and have trouble paying the bills. An elected replacement system avoids such problems.

The other systems have their own challenges. The new election model, which has been championed by former Gov. Gray Davis, seems like the simplest solution and arguably fits well within voters’ understanding of how an election should work. One problem is that under California’s top-two system, it would require two votes, which doubles the cost of the election. Another problem is that it converts the recall into a special election do-over of the gubernatorial contest. Having a separate day for a replacement vote poses the same problem and potentially drives down turnout. There are solutions for these challenges, such as instant run-offs. But no such solution exists for the flaws in replace-by-law systems.

California voters jealously guard their direct democracy powers; watch what happens to these proposals when the electorate learns that they will reduce or eliminate the recall power. As voters and elected officials consider the different options for potential recall reform, they need to take a hard look and make sure they do not make the system worse. The automatic replacement model would do just that.

Joshua Spivak is the author of “Recall Elections: From Alexander Hamilton to Gavin NewsomGavin NewsomAlarm grows over smash-and-grab robberies amid holiday season Newsom pledges increased spending on busting retail crime rings The Hill's Morning Report - Presented by Facebook - Biden talks up bright side beneath omicron's cloud MORE.” He is a senior fellow at the Hugh L. Carey Institute for Government Reform at Wagner College and writes the Recall Elections Blog.

David A. Carrillo is the executive director of the California Constitution Center and a lecturer in residence at the UC Berkeley School of Law.