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California’s Recall Election: An Example of Direct Democracy, or the Opposite of Democracy?

BY JONATHAN VANKIN   •   PUBLISHED AUGUST 30, 2021
Larry Elder, the frontrunner among candidates hoping to replace Gov. Gavin Newsom.
Larry Elder, the frontrunner among candidates hoping to replace Gov. Gavin Newsom. Photo By Gage Skidmore / Wikimedia Commons   C.C. 2.0 Share-Alike License

As California voters gear up for their second gubernatorial recall election in state history—also the second in 18 years—they face a strange prospect. The incumbent governor, Gavin Newsom, who just three years ago won the largest share of the vote of any California governor ever and whose approval rating still stands at a commanding 57 percent (according to an August CBS/YouGov poll)—and who faces zero charges of corruption or wrongdoing—could be ejected from office without finishing his first term.

Recall elections have been part of California politics for well over a century, introduced into the state constitution in 1911. Any elected official at the state or local level can be recalled, but the Sept. 14 vote on Newsom’s recall takes place just nine months before he would face a scheduled election, the 2022 gubernatorial primary.

How a Governor Can Win the Election and Lose Anyway

For Newsom and his supporters, the vote appears on its surface to be little more than an expensive annoyance. Two weeks out, the governor appears a shoo-in to win considerably more votes than any of the 46 (count ’em, 46) candidates running to replace him—despite razor-thin support. As of Aug. 26, 50.3 percent of California voters said they would vote to keep Newsom in office. Among the challengers, ultraconservative talk radio host Larry Elder tops the field with 21 percent. 

A slam dunk. Right?

Not so fast. Thanks to California's almost-unique, seemingly illogical method of holding recall elections.

Under that system, even with the gaping disparity in the polls between Newsom and his closest competitor,  it is basically a coin flip, less than three weeks before the recall election, whether he will be immediately replaced by Elder or another in the field of candidates, which includes a reality TV star, a YouTuber, a philosophy professor, a former San Diego mayor, and a Hollywood character actor who published an autobiography titled Dying for a Living: Sins & Confessions of a Hollywood Villain & Libertine Patriot.

How did California reach the point where a popular governor could lose an election despite winning millions more votes than anyone else? The process seems like the antithesis of the “one person, one vote” principle. Why would votes for Newson’s opponents count for more than votes in his favor? 

The Five Types of Recall Election Procedures

Of the 50 United States, 20 allow voters to recall their governors. Nonetheless, the Newsom recall is only the fourth recall election targeted at any governor in U.S. history. Of the previous three, two were successful. Those were California’s 2003 vote to remove Gov. Gray Davis, who was replaced by action movie star Arnold Schwarznegger, and the 1921 recall of North Dakota Gov. Lynn Frazier

Wisconsin’s Republican governor, Scott Walker, fended off a recall attempt in 2012, under a significantly different type of recall process than California’s. The 20 states that allow recalls employ no fewer than five different systems of carrying out their gubernatorial recalls. 

One state, Virginia, does not include voters in the recall process at all, instead subjecting its governor to a trial in front of a circuit court. It can be a jury trial, if the governor wants one. If he loses, the Virginia governor can appeal the decision to the state’s supreme court.

The other 19 states each use one of four different methods of voting.

  • Five states employ a “retention election,” in which only the governor is on the ballot. If a majority of voters want the governor out, the next official in the state’s line of succession—the lieutenant governor, usually—steps in.
  • Another seven treat recall elections as separate special elections. Voters first cast straight-up “yes” or “no” votes on whether they want the governor out of office. If yes wins,  the state holds a second election in which a field of candidates run for the office.
  • Five states, including Wisconsin, employ a “simultaneous recall election,” in which candidates run against the incumbent governor, much like a normal election. If the governor gets the most votes, as Walker did in 2012, the recall fails. If another candidate tops the vote, that one becomes the new governor.

And then there’s California.

California’s (Almost) Unique, Undemocratic Way Of Recalling a Governor

Only Colorado also uses the weirdest and arguably most undemocratic form of recall vote: the two-part, simultaneous recall election system, in which a ballot is divided into two parts. The first is a simple up or down vote on whether the governor should be recalled. The second is a list of candidates who hope to replace the governor.

If the governor can’t win more than 50 percent of the yes-no vote, one of the replacement candidates immediately becomes the new governor—even if that “winner” scores only a fraction of the governor’s total votes.

The governor is not permitted under the California Constitution to appear as a candidate on the ballot. Unlike in Wisconsin, where candidates run directly against the incumbent governor, in California they run only against each other. And because there are a lot of them—46 ran to replace Newsom, an absurd 132 ran to take Davis’s job in 2003—it’s possible to win with an extremely low percentage of the vote.

If Newsom slips just below 50 percent, Elder’s votes will count at least twice as much as Newsom’s.

If this system seems blatantly unfair and just flat-out wrong to you, you’re not alone.

“The most basic principles of democracy are that the candidate who gets the most votes is elected and that every voter gets an equal say in an election’s outcome,” wrote University of California-Berkeley Law School Dean Erwin Chemerinsky and Berkeley law professor Aaron S. Edlin in a New York Times op-ed in August. “The California system for voting in a recall election violates these principles and should be declared unconstitutional.”

New Yorker writer Nathan Heller, who specializes in reporting on California politics, even compared the recall attempt against Newsom to the Jan. 6 attack on the U.S. Capitol.

“It is hard to conceive of a more cynical plan from extreme conservatives trying to control Sacramento,” Heller wrote. “Or a scheme more damaging to the premises on which democracy runs.”

‘...Demagogues, Wacky Candidates and a Marginalized Political Party that Can’t Win Legitimately in Regular Elections…’

The normally staid editorial board of the state’s largest newspaper, the Los Angeles Times, went so far as to brand California’s recall system “nuts.” The paper’s editors noted that in 1911, California’s citizens needed to be protected from “a political structure that had been hijacked by the powerful Southern Pacific Railroad.” The recall and other “direct democracy” measures—the voter referendum and ballot initiative—were designed to provide that protection. The situation is very different today.

“In 2021, voters need protection from demagogues, wacky candidates and a marginalized political party that can’t win legitimately in regular elections and resorts to exploiting this outdated law to unfairly seize power,” the Times editorial stated.

Newsom and other state Democrats have judiciously refrained from challenging the legitimacy of the recall process,  with the incumbent governor telling Politico, “I’m going to leave that to others.”

Gray Davis was even less sympathetic, telling CalMatters that Newsom, like all California officeholders, knew what he was getting into when he ran for governor in the first place.

“When you run for office in California, you know the people have the first and last word by virtue of initiatives passed 110 years ago,” Davis told reporter Emily Hoeven. “So if you don’t like that, don’t run for office in California.”

How Did California Get Here? 110 Years Later, Reasons Still Murky

The statewide recall initiative in 1911 was based on a measure that voters approved in Los Angeles eight years earlier, and in 25 other California cities in the seven years after that.

In those days, “progressive” was a bipartisan term for anyone who opposed the corporate dominance of government and the corruption that came with it.

The recall law’s strongest proponent, a conservative Los Angeles doctor and activist named John Randolph Haynes, admitted that it could easily be misused, and that it depended on “a very well-informed citizenry” to use it appropriately, historian Tom Sitton told the Times.

“If the Progressives were here,” San Jose State politics professor Larry Gerston told the paper at the time of the Davis recall vote, “they would be rolling in their graves.”

Making matters worse, the Los Angeles recall law allowed a sitting public official to run against other candidates in the recall election, similar to the way recalls are done in Wisconsin today. That way, an incumbent governor merely has to beat his challengers to keep his job. But for reasons that remain unclear to historians, according to an analysis by Vox.com, “a provision prohibiting that was included, and it’s not clear why the change was made.”

The Progressives in 1911 also decided to allow the top vote-getting candidate to win the election with only a plurality, no matter how far short of 50 percent it fell. That decision was likely made to save the considerable sum of money it would take to stage a runoff election, according to the Vox analysis. The Sept. 14 election will cost $215 million. A runoff election would likely run up a sizable tab as well.

In her 2004 academic article “Democracy in the Wake of the California Recall,” former University of Southern California provost and law professor (and later, president of Cornell University) Elizabeth Garrett cautioned that allowing a runoff election could work against “the need to resolve the recall and return to normal governance relatively quickly.” The delay between the recall election and runoff, she pointed out, would create a lengthy period during which a recalled governor would remain in power, or that a lieutenant governor oversees what would essentially be an interim administration.

What Are the Solutions to the Recall Problem?

The result is the current system, under which a candidate such as Elder could take over the highest office in the state with far fewer votes than Newsom. In 2003, this anti-democratic possibility was averted because Schwarznegger, with about 4.2 million votes, outpolled Davis, who won just over 4 million votes opposing his recall.

The Los Angeles Times, in its Aug. 2 editorial, called for a “bipartisan commission to build a foundation for a proposed constitutional amendment to be placed by the Legislature on a future state ballot.” The amendment would significantly overhaul the recall process, an overhaul supported by two of three state voters, according to a July poll by the Public Policy Institute of California.

But such a commission cannot come in time for the Newsom recall. According to New Yorker scribe Heller, there is only one effective way to register opposition to the undemocratic system.

“A vote against the recall strengthens democratic norms and institutions, but it also preserves the possibility of real change,” Heller wrote. “And that includes the right of challengers to return next fall and vie against the Governor. May the best candidate win.”

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