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Do Better Next Time

The state's recall laws clearly could use a little tweaking

August 17, 2003|Bruce E. Cain

California's recall laws, like Florida's recount procedures, were an accident waiting to happen. In both cases, the laws had internal inconsistencies and flaws that were never fully understood until the glare of an important statewide contest exposed them.

In each case, the rules could be easily manipulated toward nondemocratic ends by professional consultants looking to gain advantages for their candidate clients. And the many ambiguities in the laws eventually sprouted numerous lawsuits and invited court intervention into the political arena.

One important difference so far is that both the state and federal courts seem more reluctant to play referee in the California recall than they were in the 2000 presidential contest.

Over the next two months, Californians will be primarily consumed with the tactical complexities and theater of this unusual election format. But before the politics eclipse the process completely, it would be useful to recap the potential problems with California's recall law and to contemplate some possible solutions.

For those who deplore the concept of the recall altogether, reform means abolishing it entirely. Abolition is unlikely to be a viable option. Californians like their direct democracy no matter what the unintended and unwanted consequences.

California's recall laws are uniquely user-friendly. Only 18 states have any provision for recalling a governor. Comparing California's process with the other 17 states reveals some interesting facts:

* California is only one of six states to allow all elected officials, including judges, to be recalled.

* California has the lowest signature threshold, requiring 12% of the vote for the office in the last election. Most of the other recall states set the threshold at 25% or above, and six use eligible voters rather than actual voters as the threshold measure.

* California provides the third-longest period for circulation of the recall petition (160 days).

* Thirteen states provide that an elected official must be in office for a minimum period before a recall can be initiated, and nine states prohibit recalls within 180 days to one year before the formal end of a term. California has neither of these provisions.

So the first question to ask is whether we want our state's recall process to be this "user-friendly" given that some potential users might use it to advance narrow and partisan agendas. Or do we want to close the window just a bit by raising the signature requirement to a level closer to other states' and by limiting the period in which incumbents can be recalled?

Then there is the question of who should initiate a recall.

The current law offers no protection against sore losers who want to bog down an incumbent's time and resources with an electoral challenge. To be fair, the current effort may prove to be more than a revolt of the losing minority party if indeed, as proponents claim, close to 40% of those who signed the petitions are Democrats. But the point is that the current law does not protect against the possibility of exploitation by sore losers. The real purpose of the recall should be to help those who have a serious case of buyer's remorse -- they have changed their minds and feel it is urgent to remove an official.

This is a difficult problem because the secret ballot prevents us from knowing who voted for particular candidates. Still, we could approximate some guarantee of buyer's remorse by requiring that at least 50% of the signatures come from those who are registered with the incumbent's party. There is little that we can do about the paid signature-gatherers, given recent court decisions. In the end, voters have to take responsibility for reading and understanding what they sign.

In some ways, the most troubling aspect of California's current recall law is that it combines a majority vote referendum with a plurality vote special election. This, in effect, requires the incumbent officeholder to get more than 50% of the vote to retain the position, but allows his or her successor to be elected with far less than a majority.

California is unique in this design. Other states follow one of two models. Either they have a recall vote followed by a separate replacement election (as in Georgia), or they forgo the recall vote altogether for an election that pits the incumbent against all the challengers (as in Arizona).

Either of these systems makes more sense than what California now has. Putting both votes on the same ballot and prohibiting the incumbent from appearing in the replacement election creates the possibility that the incumbent could have more support than his successor. To fix this, California could adopt one of these two other state models, or simply allow the incumbent to run in the second part of the ballot.

Finally, there is the problem of candidate overload, which I suspect will be the easiest problem to fix.

It is nice to have some fresh faces, but with 135 names on the ballot there are a lot of practical and mechanical problems for registrars and voters. The secretary of state chose a very low qualification threshold of a $3,500 filing fee and just 65 signatures. Why not set the signature threshold for replacement candidates at 1% of the incumbent's previous total vote?

Whether or not one likes the current recall effort, it would be prudent to fix the features of the recall law that are most vulnerable to abuse. It is one thing to experience occasional wacky and weird politics, but it is another thing to encourage problems by design.

Bruce E. Cain, a political science professor at UC Berkeley, is director of the Institute of Governmental Studies.

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