By Allison Rector
JD, McGeorge School of Law, University of the Pacific
to be conferred May 2004
BA, Political Science, University of California, Los Angeles, 2001
Copyright © 2003 by University of the McGeorge School of Law
The electorate of California may soon make history by being the second state ever to recall a governor from office. As the national spotlight has fallen on California, it has focused on the numerous legal battles involving the recall, now set for October 7, 2003. These legal battles, coupled with a ballot which lists 135 replacement candidates has led the special election to be dubbed nothing short of a circus. Legal challenges have been made to both the Constitutional provisions relating to the recall of state officers, and to the Elections Code sections which contain more detailed requirements relating to a recall. Specifically, the legal challenges have involved issues from whether there may be replacement candidates on the recall ballot, what requirements they must meet, whether a person has to vote on the recall to vote for a successor, and whether certain individuals voting rights are being disturbed by having this special election. Many of these cases carry a common theme: the recall statutes and constitutional provisions are poorly drafted. The statutes are often vague, open to a wide variety of interpretation, and are silent on a number of important issues.
This report will highlight several of the cases involving the California recall where major statutory conflicts have arisen. It will further examine potential reforms to the recall laws which if made, may help to avoid the next political and legal circus.
The California Constitution defines a recall as, "the power of the electors to remove an elective officer." CAL. CONST. ART. II, § 13. In 1911 California became the second state to adopt recall procedures through a constitutional amendment. Jim Puzzanghera, History of recall gives fuel to both sides, The Mercury News, at http://www.bayarea.com/mld/mercurynews/news/6113858.htm (last accessed Aug. 26, 2003) [hereinafter History]. The recall, the initiative, and referendum were devices pushed forward by the Progressive Party and then Governor Hiram Johnson as a tool to prevent political corruption, especially by the railroads. Id. Governor Johnson stated that recall was a "precautionary measure by which a recalcitrant official can be removed." Id. Several commentators, often those opposed to the recall, have argued recently that the intent of the progressives was to provide a tool to be used by the people only in extraordinary circumstances, evidenced by the fact that the number of signatures that must be obtained to qualify a recall would have been nearly impossible to achieve in 1911 without paid signature gatherers or mass media. Id. However, those in support of the recall counter that with no specific grounds required to initiate a recall effort, it is a tool that may be used to replace one poor leader for a more effective one. Id.
The attempt to recall an elected official in California is hardly a novel idea. There have been 117 attempts to recall an elected official, but no statewide elected official has been recalled to date. Wikipedia, 2003 California recall, at http://www.wikipedia.org/wiki/2003_California_recall (last accessed Aug. 26, 2003) [hereinafter Wikipedia]. Seven recall measures have qualified for the ballot since 1911, and only four of those were successful. See History, supra. Those four recalls were all of state legislators. Id. The first two successful uses of the recall were directed at state senators in 1913, one for opposing prostitution, and the other for involvement in a banking scandal. Id. A successful recall did not occur again until 1995 when two members of the state Assembly were removed from office for cutting deals with the other political party. Id. Across the nation, successful recalls are also relatively scarce. Of the 18 states that have the recall device, only one governor has ever been successfully recalled, Governor Lynn J. Fraizer of North Dakota in 1917. Id. In California, there has been an attempt to remove every governor from Ronald Reagan up through Gray Davis, but none have ever reached the ballot until now. See Wikipedia, supra.
There are a number of features that make the California recall process unique. California requires no specific grounds to initiate a recall, as opposed to other states which require some showing of acts of malfeasance, misfeasance, or some general unfitness for office. National Conference on State Legislators, Recall of State officials, at http://www.ncsl.org/programs/legman/elect/recallprovision.htm (last accessed Aug. 26, 2003) [hereinafter NCSL Report]. For statewide offices, California requires the lowest number of signatures in order to qualify a recall for the ballot, only 12 percent of the votes cast in the last election for that office. Id. The law also requires that a number equal to 1 percent of the last vote for that office must be obtained from each of five counties. Id. Petitions to recall a state legislator must receive votes equaling 20 percent of the vote for that office in the last election. Id. Only six states, including California, allow all elected officials to be recalled including judges. Id. California is also in a small group of states that allows for a successor to be elected on the same ballot as the recall. Id.
In the recall process, those hoping to qualify a recall petition for the ballot must register a notice of intent with the Secretary of State, and then they may circulate the petitions, but only for a specified time period. CAL. CONST. ART. II § 14(A). If they do not receive sufficient signatures in that period, the attempt fails. Further, California provides for one of the longest periods for circulation of recall petitions, 160 days. CAL. CONST. ART. II § 14(A). Many other states allow only 60 or 90 days to gather the required signatures. See NCSL Report, supra.
A. The Constitutional Provisions
The original recall laws were contained entirely within the state constitution. A series of changes were finalized in 1974. Institute of Governmental Studies University of California, Recall in California, at http://www.igs.berkeley.edu/library/htRecall2003.html (last accessed Aug. 24, 2003) [hereinafter Berkeley Report]. These changes were passed in both the Assembly and the Senate, and as they were constitutional changes, were required to be passed by a majority of the voters in California. Id. They were approved as Proposition 9 in November, 1974. Some of the changes included removing provisions relating to recalls from the constitution and placing them in the Elections Code. Id. The major significance of the reorganization was to allow those provisions in the Elections Code to be amended by the legislature by a simple majority vote in each house. Previously, when the provisions relating to recall elections were all contained in the Constitution, they could only be amended through an initiative or by a constitutional amendment passed by two-thirds of each house in the legislature, and then approved by the voters in a general election. Id. Now, the constitutional provisions are general in nature, leaving the specific details regarding recall elections to be found in the Elections Code. Other substantive changes included adding the 160 day time frame for obtaining sufficient signatures to qualify for the ballot (there was no time limit originally) and removing any time frame after the elected official enters office before a recall campaign may begin. Previously there was a six month waiting period. Id. Further reorganization took place in 1976 by Proposition 14. Under Proposition 14 all provisions relating to recall elections were removed from former Article XXIII and grouped together in Article II in order to make the Constitution more logical, coherent, and readable.
The Constitutional provisions relating to the recall are located in Article II, in sections 13 through 19. They begin with some very general statements about the recall process. Besides defining what a recall is, they clarify that petitions alleging a general reason the recall is sought must be delivered to the Secretary of State within 160 days of circulation. CAL. CONST. ART. II § 14(A). While a reason must be given, the reason is not reviewable. Id. Section 14 also contains the signature requirements for removing a constitutional official, 12 percent of those who voted in the last election with a certain percentage required from specified counties, and 20 percent for other statewide offices. The Constitution repeatedly notes that the Secretary of State is in charge of the recall process, except when the Secretary of State is subject to a recall, and then the Controller fills this role. Section 15 provides for a 180 day period in which the recall must be scheduled, and that while a majority must vote to retain the elected official, a plurality vote will determine the replacement. Section 16 vaguely grants power to the Legislature to, "provide for circulation, filing, and certification of petitions, nomination of candidates, and the recall election." Section 18, a more controversial provision, specifies that an officer who is not recalled shall be reimbursed from the state for election expenses incurred, which may increase substantially the cost of this special election if Governor Davis retains his position. It also provides that if an official survives a recall, he or she cannot be subject to another recall for at least six months. Finally, section 19 states that the Legislature shall provide for recall of local officers. This section does not affect counties and cities whose charters provide for recall.
B. The Elections Code
The provisions relating to recall elections are discussed in more detail in various statutes in the Elections Code. Sections 11320-11327 discuss how the recall ballot will be formatted. First, there is a question about whether to recall the elected official from office, then there is section 11322 regarding replacement candidates, which was subject to debate in the Frankel case, discussed below. These sections also provide for mailing sample ballots containing statements for and against the recall. Section 11040-11047 explain the format of the petitions required to initiate a recall. This includes mandatory language that must be on every petition, the method used for determining the language on the petition, and what is required of each person signing the petition. Finally, the law requires separate petitions for each officer sought to be recalled. Sections 11000-11007 govern who may be subject to a recall, including state and local elected officials, as well as judges. The Elections Code provides for criminal penalties in many situations involving the recall. These include for offering any thing of value in order to induce a person to sign a petition, or to induce those supporting a recall to not file the petitions. The codes also have penalties for violence relating to circulation of recall petitions. Further penalties exist for forging signatures, and solicitation of false or forged signatures. Intentional misrepresentation in the obtaining signatures is also a criminal misdemeanor.
Sections 11381-11386 contain the vague statements regarding replacement candidates who shall be picked in the same manner as in regular elections, and duplicate the provisions in the constitution relating to the 50% requirement to defeat a recall, but only a plurality to pick a successor. Sections 11100-11110 govern recalls of state officers. Specifically, these sections work together with Article II of the constitution, and require petitions be submitted to local elections officials in each county the are being circulated, as well as requiring these officials to send regular reports to the Secretary of State as to certification and the number of signatures that have been obtained. There are additional provisions relating to the use of sampling in verifying signatures, and the process the local elections official must use in order to get a recall election certified by the Secretary of State. Section 11302 mandates that a recall shall proceed, once it has been certified, even if the elected official vacates the office before the recall election. Sections 11220-11227 govern the signature requirements, the time periods for circulation, and the certification procedures once the signatures have been presented to the Secretary of State. While the attempt was made to make the Elections Code sections a more detailed analysis of recall procedures, it will be explained below that many of these sections suffer from vague drafting problems, and many are inconsistent with other code sections.
A. Partnoy v. Shelley
Elections Code section 11382 is a prime example of a flaw in the California recall election statutes, as it was invalidated in federal court in July, 2003. The District Court subsequently reheard portions of the case relating to a third party intervention, and whether additional Elections Code sections were invalidated because section 11382 had previously been invalidated. Partnoy v. Shelley, No. 03CV1460BTM(JFS), 2003 WL 22146092 (S.D.Cal. Aug. 21, 2003). Section 11382 stated, "No vote cast in the recall election shall be counted for any candidate unless the voter also voted for or against the recall of the officer sought to be recalled." Findlaw, Special Coverage: California Recall Election, at http://news.findlaw.com/hdocs/docs/elections/partnoyshlly072903opn.pdf (last accessed September 29, 2003) [hereinafter Partnoy I.]. The plaintiffs in the original Partnoy proceeding, a group of registered voters and a voters' association, challenged this provision as violating their First and Fourteenth Amendment right of free speech, due process, equal protection, and right to vote for whom may be their elected official. Id. at *4. Specifically, they alleged that under the Constitution their due process and equal protection rights would be violated because by choosing not to vote on the recall their votes for a replacement governor would no longer count. Id. The plaintiffs asserted that there was a "right not to vote" recognized under numerous constitutional amendments as a necessary corollary to the right to vote, and exercise of this right should not invalidate voters' subsequent votes on who would represent them as governor for the next three years. Id. The defendants argued that the plaintiffs' voting rights were not infringed because there were not really two questions on the recall ballot, but rather one compound question. Id. at *7. Defendants offered several other arguments, including, trying to analogize the recall ballot to other legal ballot questions, such as voting on bond acts, and attempting to convince the court that voting for the first question was a minimal burden on voters. Id. at *8.
The Court examined the character and magnitude of the injury asserted by the plaintiffs, and then examined the interests put forth by the state in only counting those votes for a replacement that also voted on the recall. Id. at *11. It also examined the extent to which the state's interest infringed on the plaintiffs' rights, especially their right to vote for a replacement governor. Id. The Court held that requiring a person to vote on the recall in order to vote for a successor substantially burdened a citizen's right to vote for his or her representative. Id. at 14. The Court further rejected any of the state interests offered by the defendants, including the argument that there would not be electoral certainty if a majority chose not to vote for the recall at all. Id. at *13. Further, under Elections Code section 11382 a person could vote for the recall, but not for a successor. Id. This undermined the defendant's argument about elector certainty and stability of knowing equal numbers voted for each question on the ballot. Id. Ultimately, the Court found that discounting votes by legally qualified voters was unconstitutional. Id. at *14. "The choice to speak includes within it the choice of what not to say." Pacific Gas & Elec. Co. v. Public Utilities Comm'n, 475 U.S.1,16 (1986). The subsequent decision in Partnoy affirmed the holding that Elections Code section 11382 was invalid, but concluded that other sections in the Elections Code that the Court had interpreted in the first Partnoy opinion should be interpreted by the California courts, not the federal court system. Partnoy 2003 WL 22146092 at *5.
B. Frankel v. Shelley
Early in the recall process debate surrounded the issue of whether there should in fact be replacement candidates on the recall ballot. In one case petitioners urged the California Supreme Court to require the Secretary of State to omit any successor candidates from the ballot. Frankel v. Shelley, No. S117770, 2003 WL 21961996, 1 (Cal. Aug. 7, 2003). The Frankel case involved two specific California Constitutional provisions relating to recall elections. In article II, section 15, subsection (a) the constitution states that, "An election to determine whether to recall an officer, and if appropriate, to elect a successor shall be called by the Governor…." Id. Article V, section 10, which describes the constitutional line of succession in California states that, "the Lieutenant Governor shall become Governor when a vacancy occurs in the office of the Governor. The Lieutenant Governor shall act as Governor during the impeachment, absence from the State, or any other temporary disability of the Governor or of a Governor elect who fails to take office." Id. The petitioners combined this section with article II section 15 in order to urge the courts that there is a "vacancy" in the governor's office if the governor is recalled, and that the Lieutenant Governor automatically will assume office. Id. Therefore, it is "not appropriate" to have replacement candidates on the ballot. Id.
The Supreme Court of California rejected this argument, citing the history of recall procedures in California as a definitive answer to whether there should be replacement candidates on the ballot. Id. Recalled officeholders are always replaced by a plurality vote for a successor in the same election. Id. The Court noted that the "if appropriate" language was added to clarify that in situations when a justice of the California Court of Appeals or Supreme Court is subject to a recall, it is not appropriate for successors to be on the ballot. Id. The Court further dismissed the argument that a recall of Governor Davis would result in a "vacancy" in the governor's office, allowing the Lieutenant Governor to automatically succeed to the office of Governor. Id. "The history of the recall procedure embodied in the California Constitution, however, makes it clear that, as a general matter, when an officer is removed from office by recall and is immediately replaced by the candidate who receives a plurality of votes at the election, no "vacancy" in the office occurs and thus Article V, Section 10, does not apply." Id. The Court refused to remove any list of successor candidates from the ballot. Id. While the Court did not find these arguments persuasive, its reliance on history, rather than the actual text of the recall statutes emphasizes the room for reform of these constitutional provisions. Several potential reforms to both the California Constitution and the Elections Code will be discussed later in this report.
C. Burton v. Shelley
The California Supreme Court has heard cases not only involving vague statutory provisions, but has also been forced to decide issues that the codes do not specifically address involving the recall. Burton v. Shelley, No. S117834, 2003 WL 21962000 (Cal. Aug. 7, 2003). The petitioners in Burton urged the Court to compel the Secretary of State to only allow replacement candidates on the recall ballot who had obtained signatures totaling 1% of the number of registered voters in California (approximately 153,000 signatures). Id. at *1. As there are no statutory provisions which dictate what qualifications a replacement candidate must meet, both the petitioners and the respondent, the Secretary of State, relied on different code sections as an answer to this open question. The petitioners argued that replacement candidates should have been governed by Elections Code Section 8400. Id. This section applies to independent candidates who have not been nominated by a party primary, and wish to run in a general election. Id. Secretary of State Shelley had already determined what he believed were appropriate requirements, only 65 signatures and a fee of $3500. Id. He developed this number by relying on the method his predecessors had used in previous recall elections, and relied upon Elections Code Section 11381 which states that candidates for replacement in a recall shall be governed by the nominating procedures in "regular elections." Id. The number 65 stems from Elections Code section 8062, which determines the number of votes required for a nomination in a party primary election. Id. The petitioners argued that this low standard has allowed any regular person to run, resulting in the enormous number of candidates that will be on the October 7 ballot. Id.
The Court sided with the Secretary of State. It chose to view Elections Code Section 11381 as "flexible" giving substantial discretion to the Secretary of State, whose decisions as a constitutional officer are entitled to "substantial judicial deference." Id. The Court, as in Frankel, gave further deference to Secretary Shelley because his method had been used in the past, specifically by the two previous Secretaries of State before him. Id. Finally, the Court was persuaded by the short period of time that potential recall replacement candidates have to qualify for the ballot. Id. In this recall, they had only 16 days to take out papers, get signatures, and file with the Secretary of State. Id. The Court suggested that there was a risk of an unconstitutional interference with the right to be on the ballot to require such a large number of signatures. Id. at *2. The Court specifically noted that this matter should be addressed by the legislature. Id. at *3. A clear indication of the problems with the recall statutes can be seen in this case where the Court noted that the petitioners' proposed procedure "has no greater inherent application to recall replacement elections than the procedure selected by the Secretary of State." Id. at *2. In other words, based on existing statute there is no clear standard or requirement.
D. Other Cases
There have been several other cases filed in connection with the current California recall. Findlaw, Special Coverage: California Recall Election, at http://news.findlaw.com/legalnews/lit/recall/ (last accessed Sept. 28, 2003) [hereinafter Findlaw]. There have been several cases that were summarily denied and dismissed without an opinion from the courts. These cases include Governor Gray Davis's petition to the California Supreme Court to prevent the recall from continuing on the grounds that the Governor's rights were violated because his name would not appear in the list of replacement candidates on the ballot. Id. Other cases challenged the verification of signatures to certify the election, specifically alleging the paid signature gatherers did not establish residency in California, and helped to illegally obtain many of the signatures used to certify the election (Robins v. Shelley). Id. Another case argued that Secretary of State Shelley had a legal obligation to continue to count all signatures, and that the signatures should have been counted within five business days after they were received from the counties (Recall Gray Davis Committee v. Shelley). Id.
The other cases filed in connection with the recall were those that were based on projected voting irregularities. Id. Most notably was Southwest Voter Registration Education Project v. Shelley, the case that temporarily stopped the recall from proceeding, until the 9th Circuit en banc reversed this decision, and reinstated the recall election. Id. This case will be discussed in further detail below. Other voting rights cases including Oliverez, et al. v. State of California, Aurelio Salazar, et al. v. Monterey County, California, et al. and Dolores Gallegos, et al. v. State of California, et al. were also denied. Id.
A. Establish more difficult procedures to initiate a recall
Governor Johnson in 1911 described the type of official he believed the recall should be focused on, a recalcitrant official, or one who is disobedient, refuses to obey authority, and is difficult to handle. Richard Hasen, Elect to Resolve Balloting Quandary, at http://www.lls.edu/academics/faculty/pubs/hasen-dailyjournal03.html (last accessed Sept. 1, 2003) [hereinafter Hasen]. It has been suggested a recall should only be used in the rarest of situations, like those described by Governor Johnson. Id. Therefore, one potential reform to the recall laws is to make a recall more difficult to initiate. This may be accomplished in two ways. First, the legislature could increase the signature requirements. California only requires 12% of those that voted in the last election for that office to sign petitions to qualify for a recall. CAL. CONST. ART. II, § 14(b). Several states that have a recall require 25% of the votes cast in the last election, or 15-20% of those eligible to vote in the last election. In a state as large in population as California, 900,000 votes to initiate a recall is not an undue burden. Many commentators suggest that even if California required 25% of those votes cast in the last election, the Davis recall would still have qualified. By increasing the number of votes required this reassures that the recall mechanism will only be used in the most egregious of circumstances. Second, the legislature could decrease the number of days allowed for a petition to circulate, for the same results as discussed above. It is again worth noting that California has one of the longest circulation periods of any state with the recall. CAL. CONST. ART. II, § 14(a). A shorter time period to obtain signatures would keep recall elections to a minimum. Id. In order to effectuate change in this area, California Constitution Article II, section 14(a) and 14(b) would need to be amended.
B. Requirements for the nomination of successor candidates
As the Burton case indicates there is a need for legislation in the area of replacement candidates. The first need for reform in this area is a significantly higher number of signatures in order to qualify for the ballot. See also Hasen, supra. In a state with a population of over 20 million people, 65 signatures is arguably too low. Support for this change was even suggested by Chief Justice George in the Burton decision. He wrote separately to suggest that no election should be allowed to continue with nomination procedures so inappropriate. Burton, 2003 WL 21962000 at *4. The Chief Justice argued that the number of signatures needs to be increased to a "relatively high" figure in order to avoid what he called "frivolous candidates" on the ballot. Id. He also used the legislative history of the recall in California to strengthen his argument. Id. at *5. The previous version of the Constitutional recall provisions (former Article XXIII Section 1, repealed by Proposition 9 in 1974) stated that, "Any person may be nominated for the office which is to be filled at any recall election by a petition signed by electors, qualified to vote at such recall election, equal in number to at least one per cent of the total number of votes cast at the last preceding election for all candidates for the office which the incumbent sought to be removed occupies." Id. at *4. Proposition 9 removed a large number of the constitutional provisions relating to details about recall elections, and moved them to the Elections code, leaving the general provisions in the Constitution. Id. at *5. The provision relating to the requirements of a replacement candidate were located at Elections Code Section 27008. Id. However, two years later, this section was repealed, replaced by a more general section stating that, "nominations of candidates to succeed the recalled officer shall be made in the manner prescribed for nominating a candidate to that office in a regular election…" Id. The Chief Justice relied on the legislative history of this 1976 enactment, noting that the change was intended to reduce the complexity of the recall procedures. Id. In his analysis he found no evidence that the intent of the Legislature was to significantly reduce the number of signatures required, but merely to assure that the procedures used in a regular election would be used. Id. He argued that the figure adopted by the Secretary of State was for primary elections, not regular elections, and therefore the historic 1% requirement should stand. Id. at *6. As indicated by the Burton case, the lack of specific requirements of replacement candidates has made the recall process a legal battlefield.
The Chief Justice also focused on the inherent ambiguity in the current code sections in this area, specifically those argued in the Burton case. Id. For effective reform in this area, the discrepancy between Elections Code section 11381 (nomination of candidates to succeed a recalled officer should be governed by the nomination procedure used in "regular elections) and section 8000 (stating that the nomination procedures for primary election candidates do not apply to recall elections) must be removed or amended to achieve consistency. Attempts to use other provisions in the Elections Code, such as section 8400 (requirements for independent candidates in general elections) and section 8062 (requirements for nomination for a party primary election) to clear up this discrepancy ultimately fail and require a decision by the court based on deference to an elected official, rather than a decision based on the plain language of the law.
Other reasons for increasing the requirements of successor candidates are apparent now, with 135 candidates on the ballot. See generally, Hasen, supra. There is no possibility for debate with this many candidates on the ballot. Further, such low requirements attract less serious candidates who are only in it for the publicity, or to be a part of history. The law in this area is ambiguous, and is in need of revision with specific requirements for successor candidate qualifications laid out in the law.
C. Increasing the time period between the registration of the recall and the date of the election to the date of the next general election.
Currently, California law provides for a 60-80 day period after the recall is registered, before the actual election must take place. CAL. CONST. ART. II, § 15(a). In contrast, local recall elections often provide a time period of between 80-125 days to schedule an election. See generally Hasen, supra. As several of the lawsuits indicate, election officials could clearly use more time in order to adequately prepare for a special election. The most recent lawsuits involving voting rights issues have highlighted the need for more preparation time. The problems with the time period have most clearly been illuminated by the recent 9th Circuit decisions in Southwest Voter Registration Education Project v. Shelley, No. 03-56498, 2003 WL 22175955 (9th Cir. en banc Sept. 23, 2003). In that case, the plaintiffs filed a complaint to stop the election from proceeding alleging that the use of punch-card balloting machines that would be used in several counties during the special election had a high error rate. Southwest Voter Registration Education Project v. Shelley, No. CV 03-5715 SVM (RZX), 2003 WL 22001185 (C.D. Cal. Aug. 20, 2003). This error rate, they argued, was twice as high as with other voting technologies, and therefore with the punch card machines voters have a larger chance of not having their votes counted. Id. at *2. The plaintiffs further argued that the counties using these punch card machines have larger minority populations, and therefore the minority populations will be disproportionately disenfranchised on the basis of race, a violation of the Voting Rights Act. Id. The district court did not agree, denying the application for a restraining order and preliminary injunction. Id. However, a 3 judge panel of the 9th Circuit reversed, staying the recall election until March 2004. Southwest Voter Registration Education Project v. Shelley, No. 03-56498, 2003 WL 22119858 (9th Cir. Sept. 15, 2003). The 9th Circuit panel agreed that time was a key issue, noting both the fact that the punch card machines were being forced to be used one more time, and that a majority of polling places would not even be open because of insufficient time to get them ready. Id. at *2-3. Need for reform in this area is exemplified in the 9th Circuit panel's closing lines, quoting Bush v. Gore, "The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees." Id. at *64. This sentiment and the ultimate outcome of the case was not in accord with an en banc panel of the 9th Circuit's interpretation of the law. Shelley 2003 WL 22175955, at *1. The 9th Circuit held that while the right to vote was fundamental, interfering with an election that was already in progress was almost unprecedented. Id. at *3. Specifically, they relied on previous Supreme Court decisions that allowed elections to move forward despite, "an undisputed constitutional violation." Id. The Court further focused on the public burden in delaying the election. Id. at *4. Election officials had already devoted significant resources towards the election, and the public had not only devoted time to following the campaign, but thousands had already voted by absentee ballot. Id. The Court found the plaintiff's arguments to show a mere "speculative possibility" this could not be used to delay the election. Id. at 5. Each of these three decisions exemplifies how an increased time period to schedule an election could prevent many future legal issues.
It is important to note that the 60-80 day period to set a recall election does not apply if there is a regularly scheduled election within 180 days. CAL. CONST. ART. II § 15(B). This exemption could be very helpful in consolidating any future recall with the next general election, saving time and money. However, this exemption is clearly not sufficient. As the current California recall shows, in a case where the next regular election is seven months away, the 60-80 day period is ineffective and too brief. There are several other examples of why the 60-80 day period is too short. A shorter time period makes it difficult to receive all of the clearances required by the United States Attorney General. A shorter time period further increases the chance that voting equipment is not ready and up to date. Therefore, in those situations where the exemption does not apply, there is significant room for litigation over a number of issues.
A potential reform here would be to require any recall to be placed on the next scheduled general election ballot. A potential exception to this new rule would be if the next regular general election were scheduled within a short period of time, for example 60-80 days away. This would ensure a longer time period for elections officials to prepare for the election. In addition, this proposed rule would save the state money and other resources by avoiding a costly special election. The counties are required to pay for the current special election in a time where local governments are hurting economically. However, counties budget for regularly scheduled elections. Therefore local election officials would be able to save time and resources if the recall could be held on the next general election. To emphasize how important this would be in a state with a 45 billion dollar budget deficit, this special election is projected to cost the state between 60 and 75 million dollars. Furthermore, this change would likely give potential successor candidates more time to obtain a larger number of signatures to place their name on the ballot, another reform suggested above. In Burton, the court focused on the possible unconstitutionality of requiring thousands of signatures in a few days. Burton, 2003 WL 21962000 at *2. This proposed rule which would in effect increase the time period for candidates to obtain signatures would eliminate that possible constitutional hurdle. Providing that every recall election is to be set on the date of the next general election would, in some circumstances, involve a long period of time before the official may be removed from office. However, the longer time period may be beneficial in ensuring that the election may take place with fewer legal challenges, and under normal electoral conditions.
D. Eliminating the plurality
Under the California Constitution if a candidate is recalled, the successor is elected by a plurality of those candidates on the ballot. Thus, Governor Davis could be recalled by receiving 49% of the vote, and his successor could become governor with as little as 10% of the vote. Many argue this is an unfair result, and a prime area for reform. See generally, Hasen, supra.
There are a large number of options in this area to achieve more equitable results. First, there is the potential for a runoff election. The top vote recipients could have to run against each other in a majority election on another ballot. While this ensures the new official would have received 50% of the vote, this would be expensive in a state already faced with financial difficulties. Another possible change would be to have a separate election entirely for the replacement if the recall is successful. Bruce E. Cain, Commentary; Do Better Next Time; The state's recall laws clearly could us a little tweaking, L.A. Times, Aug. 17, 2003, at M5 [hereinafter Cain]. The first election would only ask whether or not to recall the official from office, and again, a second ballot would be used to pick a successor. Fundamental to the success of this option would be to raise the nomination requirements to avoid the current situation with a large number of replacement candidates running. The winner on the second ballot would then take the office of the recalled officer. The potential difficulties here again are time, and cost. As the projected costs of the current special election range from 60-75 million dollars, two special elections to recall one official would be provide an enormous monetary strain on the state's struggling economy. The time issue here would be that one recall could take several months, even up to one year to complete. Currently, the state has up to 80 days to schedule the special election to recall the governor, and as the voting rights cases exemplify, it is having substantial difficulty holding an election in such a short period of time. The state would have to rapidly put on two elections in a short time frame, which could provide more chances for problems with an election. Further, if a second ballot was required to pick a successor the office could be vacant for between two to four months. This would be significant in an office such as the governor, who is required, as the executive, to sign all legislation that would become law. This would result in a virtual standstill of the state government. Then there would be the issue as to whether a different official could run the state government in the interim. Would the lieutenant governor step up because there is a "vacancy" in the governor's office? A two ballot recall would require numerous legal issues such as this to be determined before the system was enacted.
A third option is to have only one election that acted as a regular election would. This would involve a list of candidates, with the current elected official in that list, with the majority vote recipient as winner. This eliminates the yes or no question as to whether the elected official would be recalled, and replaces this with a contest between the current official, and those desiring to replace him. Finally, a ballot could be designed to keep the first question of whether the official should be recalled, but to also allow the official to be added to the list of potential successors, listed in the second question. This would in effect allow for the possibility that the official could be recalled, but gain enough votes to retain his office. Id. However, several of these options were discussed in Governor Gray Davis's petition to the California Supreme Court to delay the recall from taking place on October 7. The Governor asserted that his rights were being violated by not allowing his name to be included with the replacement candidates, and due to the fact that a mere plurality would elect a successor but he must obtain 50% of the vote to retain his job. While the California Supreme Court did not speak to the sufficiency of these legal arguments, it did summarily dismiss the Governor's petition without an opinion. Therefore it remains unclear as to what reforms could be actually made in this area.
It is important to consider issues such as time and money in this area of reforms. If enough signatures have been gathered to force a recall, voters may be unhappy with knowing that two elections would be required to remove the official and find a replacement. Again, this takes on special considerations while California is so deeply in debt financially. However, reforms here would be important to addressing the fundamental unfairness of having a governor elected with a small percentage of the vote.
E. Remove the "if appropriate" language
Article II, section 15 and the "if appropriate" language for determining if replacement candidates should in fact be allowed on the ballot has been the prime example of the vague and problematic drafting of the California recall provisions. The first significant problem with this language is that it is flatly in contradiction to Elections Code section 11322 which suggests that every recall ballot must have successor candidates. As the petitioners in Frankel noted, the "if appropriate" language must have been placed there for a reason, and it should not be flatly ignored. The Court's opinion in Frankel that this phrase was there to clarify language relating to the recall of judges is not readily apparent in the actual statute. Frankel, 2003 WL 21961996 at *1. The Legislature needs to clarify specifically that successor candidates either should or should not be automatically included on a recall ballot. Furthermore, as Frankel suggests, vague drafting of one statute can leave room for a lawsuit when that provision is coupled with other equally vague provisions. The argument in Frankel emphasizes the need to do a thorough study and rewrite of all of the recall provisions.
This matter is further complicated by the succession statutes that do not clarify if the Lt. Governor would actually take over in place of the governor in a recall situation. One important change here would be to define exactly what the term vacancy means. Is vacancy a temporary or permanent condition? A clarification of this term would resolve a Frankel-type challenge.
F. Abolish the recall
One of the more drastic suggested reforms has been to abolish the recall altogether. See generally Cain, supra. The states that do not have a recall often use impeachment as the option for unlawful conduct or unfitness for office by an elected official. The recall is a powerful tool. It has been suggested that with the enormity of press coverage the California recall has attracted, people may be more inclined to use this device in the future. This is worrisome in California as no grounds for a recall are required. The constant fear of a recall can inhibit elected officials from making any significant policy decisions or any drastic changes in their office. It is important for an official to be able to do his job, but also to be able to do what he was elected by the people to do. If a governor was elected on a certain platform, he may be fearful of signing certain legislation that may be very unpopular to the opposing political party. As evidenced by this election the minority party in state politics can easily force a recall election if properly funded. Moreover, constant recalls would provide for an unstable state government. California has the fifth largest economy in the world and requires a level of stability in its government in order to function properly. If the recall increases in use, the financial strain on the state could be immense. Even at the local level, the local government would have to absorb these costs. This could be potentially disastrous in the current economy.
G. Establish grounds for initiating a recall, who may initiate it, and a minimum waiting period
If the legislature chooses to make reforms to the recall statutes because it wants to control the use of the recall, reforms such as establishing grounds for a recall, who may initiate a recall, and establishing a minimum time period after the official has taken office before a recall may be initiated would achieve that goal. See generally Cain, supra. Several of the other states that have recall procedures require some sort of specific behavior by the elected official before they may be subject to a recall. Examples of grounds that may be adopted include Alaska's requirements of lack of fitness, incompetence, and neglect of duties or corruption. See generally NCSL Report, supra. Minnesota requires serious malfeasance or nonfeasance during the term of office or in performance of duties. Many states allow for a recall upon conviction of a felony. Each of these requirements is in place to ensure that a recall may not be initiated merely for making certain politically unpopular decisions. Recall efforts in those states are limited to circumstances of egregious conduct by the elected official. Id.
Additionally, California could adopt regulations as to who may initiate a recall. Commentators have argued this would be an important reform in order to avoid a "sore loser" from bankrolling a recall effort because of a personal agenda. See generally Cain, supra. This criticism stems from the fact that the Davis recall was struggling until a wealthy republican Congressman, Darrell Issa, came in to bankroll it. Some felt that this was an attempt to buy office rather than an attempt to remove an ineffectual leader. Those who suggest this type of reform also want to ensure that an elected official is not forced to spend a large portion of his time and money fighting to keep his job.
Finally, the legislature could reestablish a waiting period after the elected official takes office, before a recall effort may be initiated. A six month waiting period existed in the California constitution before it was reformed in 1974. A waiting period would give an official elected by slight majority time to get settled into office, begin to establish an agenda, and become more popular with the electorate. Each of these three types of reforms is urged by those who fear the recall will be more widely utilized after the current gubernatorial recall by those who have the resources to finance it, but are in it for the political gain, not for the good of the people. Id.
As Chief Justice George noted in the Burton decision, "it is apparent that the provisions here at issue are ambiguous, and in some instances internally inconsistent, and deserve the attention of the Legislature, the Constitution Revision Commission, and the California Law Revision Commission." As this quote indicates there is serious need for reform of the California recall statutes. Each of the major cases surrounding the recall has contained a common theme of poor drafting, inconsistency, and vagueness. In some instances important issues were not covered by the statutes at all. Each of these reasons exemplifies the need for reform. Some reforms discussed above serve some other purpose as well, for example making the recall a more difficult tool to use. Others are aimed at removing the flaws in the current system. Ultimately, reforms must be achieved in order to avoid the next "circus."