Letter to Mark Ridley-Thomas
Dear Mr. Ridley-Thomas:
I was annoyed with your proposed constitutional amendment regarding recall election laws, as reported in the Sacramento Bee
The Los Angeles Democrat would increase the number of signatures to 12 percent of registered voters, rather than the current requirement for 12 percent of the number of votes cast in the last election for that office.
His bill also would ban statewide initiatives from the recall ballot and designate the lieutenant governor as the replacement when voters kick the governor out of office.
"This (recall) process seems to be flawed in so many ways," Erwin Chemerinsky, USC law professor, said. "It was far too easy to get the recall on the ballot. ... It was far too easy for people to qualify to be candidates."
Since only 60% of the state's electorate typically votes in a gubernatorial election, changing the basis to election qualification from 12 percent of the number of votes cast in the last election for governor, to 12 percent of registered voters, would effectively change the election requirement to 20 percent of the number of votes cast in the last election for governor.
The argument that it should be hard to qualify a recall rests on the need for the officeholder to enjoy a period with few distractions, in order to be free to govern, and in order to propose necessary changes in governance. That presupposes that the officeholder has been elected in a legitimate manner, however. In 2002, Gray Davis was elected in a manner that called into question the legitimacy of his election. Davis interfered in the Republican primary, spending large amounts of money to damage the prospects of his strongest potential rival, Richard Riordan, and elevate the candidacy of a weaker rival, Bill Simon. Davis was successful in his effort to deny Riordan the Republican nomination, and thus deprive California voters of Davis' strongest viable opponent. Democracy is always threatened when the stronger candidate has free reign to choose his opponent. The election became something of a farce after that, and the low voter turnout in the statewide 2002 election demonstrated that voters understood the game well enough. Preservation of democracy from questionable actions by the candidates thus demands that a recall option be available, and that it should be relatively easy to invoke.
In 2003, in his new term as governor, despite a severe budget emergency, Davis proposed little except stopgap measures, just as he had the year before - Davis' choice was to hobble into the next year, and pray for an economic miracle. So much for the advantages of having a new term in office with few distractions. Indeed, it wasn't until Davis had the white-hot blow torch of a recall election on him until he seemed to act at all to address the state's problems. Given Davis' sorry record, a better argument can be made for automatically invoking a recall process the instant any governor takes his/her oath of office, than for making recall elections nearly impossible to qualify. Given his questionable election, Davis never deserved a period with few distractions in office, and wasn't able to make good use of the distraction-free time he had anyway.
There is no particular reason why the lieutenant governor should automatically succeed in the event of a recall of the governor. If the legitimacy of the election is clouded, as in 2002, then the lieutenant governor should automatically NOT succeed, unless the lieutenant governor should win as a candidate in the recall election.
There is some advantage in placing statewide initiatives on the recall ballot - a larger voter turnout, for example. There is no reason to exclude statewide initiatives from the recall ballot.
Regarding an increase in nomination signature and filing fee requirements for recall candidates, I think there are two problems, not just one: a crowded ballot vs. a ballot with non-serious candidates. The crowded ballot problem is a technical matter that can and should be settled rather easily. And what's so bad anyway about having a ballot crowded with serious candidates? More points of view that can be aired - more choices - isn't that what America should be all about anyway? Serious political messages can start small, and quickly spread in a meme-like way. And why not?
As is only too evident in modern American elections, ANY mechanism to narrow the list of candidates, like a runoff, or a primary, or higher requirements, serves instead to stunt public interest. THE major source of illegitimacy in modern elections is lack of choice (e.g., Davis vs. Simon, 2002), not a field divided among many candidates. In any event, open your eyes and look at the 2003 recall election! Big field, higher turnout! That was not an accident - even if a celebrity like Schwarzenegger had been absent from the ballot, turnout would likely have been higher than in 2002! In fact, I suspect if Schwarzenegger had looked less like a winner the week before the election, and the result of the election even more in question, the turnout would have been even higher than it was. And it was still possible for Schwarzenegger to gain a commanding majority, without an unseemly division of the electorate (pre-election fears about that possibility were WAY, WAY overblown!)
Still, to help narrow the choices of the voters, just as a practical matter, an instant runoff voting procedure would help: choice of candidate is preserved, and yet it is possible for a legitimate majority to be determined.
Regarding a ballot with non-serious candidates, remember, there are large concentrations of non-serious wealth in the United States, particularly in California. If requirements are raised, only porn merchants, ex-sitcom stars, and performance artists will be able to afford access to the ballot. Serious folks will be absolutely excluded, to everyone's detriment. It's a distraction having non-serious folks on the ballot, but it's better to let them in, in order to allow the serious others to have a shot as well. You can raise requirements high enough to exclude the Green Party, but not high enough to exclude Hustler Magazine. You can raise requirements high enough to exclude the Republican and Democratic Parties, but never high enough to exclude Hustler Magazine!
Mr. Ridley-Thomas, in the light of the experience of the 2003 election, please reconsider. Indeed, some people, like Professor Richard Hasen, already have. In this pre-election article
, Hasen made five suggestions:
Increase the signature requirements to recall elected officials to 25%, as it is in most states.
Increase the nomination signature requirements, to prevent a very crowded ballot that complicates voting.
Increase the time between the certification of the recall and the date of the election to no earlier than 90 days after certification.
Implement some procedure, such as a runoff, to narrow the successor candidates in part two of the recall ballot. With a plurality vote, someone who gains as little as 15 percent of the vote could be the next governor, a recipe for illegitimacy. Another possible fix is the "single transferable vote," or instant runoff voting, with a formula that picks a majority winner.
Clean up the inconsistencies in the recall law, and make sure that the laws do not violate the U.S. Constitution.
In this post-election article
Hasen still feels the signature requirement to recall elected officials should be raised to 25%. Regarding the size of the ballot, however, he admits that "concerns about voter confusion are overblown". Follow Hasen's lead! Reevaluate your proposal in the light of actual experience! Or at least follow a two-track approach of the sort Hasen apparently now favors
- a wish list of controversial reforms that may or may not get enacted (because some of the 'reforms' are transparently stupid), and a list of technical changes that it would be good to get adopted, no matter what.
A bigger concern remains about whether voter technology is suitable to the task - punch-card ballots, for example. But a big part of that problem isn't technology per se, it's the way we implement technology. Take the way the alphabet was semi-randomized for the ballot, for example. Despite semi-randomization, candidates were still grouped together based on last name, no matter where they appeared on the ballot. I've noticed that all the minor candidates on either side of either Cruz Bustamante or Arnold Schwarzenegger on the ballot did pretty well in the election - Burton, Bly-Chester, Strauss, and Schwartzmann - a few mistaken votes may have played some part in those good-showings - votes that can accumulate significantly in as large an election as for Governor of California. That's not a problem with old vs. new technology, it's just a dumb way to use technology, old or new. True randomization of name order should have been used instead.
Remember, instant-runoff voting preserves voter choice, as a runoff or primary election does not, and is thus a superior way to pick a majority winner.
I strongly doubt Schwarzenegger will be recalled soon, if at all - superior voter turnout and plentiful choices helped seal his election's legitimacy. Only serious failures in office will open that wound again soon.
(Former) Candidate for California Governor