News Intelligence Analysis
This article was originally published by Findlaw.
Learning from the California Recall Experience
What the Unprecedented Election Tells Us About our Laws Governing Politics
BY RICHARD L. HASEN
Monday, Oct. 13, 2003
California's unprecedented recall election fascinated the nation. Along the way, it exposed both virtues and flaws in the way American democracy currently works.
Now that the election is behind us, it is worth considering four of its lessons -particularly as the November 2004 election approaches.
Lesson One: California's Recall Process Needs Reform
Few people who spent the past few months in California would disagree that the California recall process itself needs reform. Most importantly, California should raise the threshold of signatures needed for a recall to proceed to a vote. Currently, a recall may qualify for the ballot with signatures from as little as 12 percent of the voters in the last gubernatorial election.
Unless the threshold is raised, the threat of recall may hang constantly over the head of our elected officials--officials who are already worried about surviving in the next generally scheduled election. That's distracting, and may force officials who ought to be governing to campaign constantly instead. (How much work did Gray Davis actually get done after the recall effort began?)
My suggestion is to raise the recall threshold to 25 percent of the voters in the last gubernatorial election. Given the breadth and depth of Governor Gray Davis's unpopularity, Davis would surely still have been subject to a recall election under this standard. But currently, the threshold is so low that almost any state official - not merely strikingly unpopular one, as Davis was - could face a recall election.
California recall law also should be amended to ensure a transition/honeymoon period for the newly elected Governor to adjust to the demands of office. Under current law, nothing stops signature gatherers from attempting to recall Governor-elect Arnold Schwarzenegger the day he takes office.
Lesson Two: States Should Ensure Ballot Access for Serious Candidates
There were 135 candidates on the ballot who sought to replace Davis. As a result, outsiders saw the process as a "circus." But the large number of candidates running for office in fact improved the process.
Voters heard from a variety of perspectives - from staunchly conservative (Tom McClintock) to hard left (the Green Party's Peter Camejo). Many California voters cited the last debate, in which five candidates participated, as very valuable in making a decision on how to vote.
Yet state laws typically make it very difficult for minor party and independent candidates to participate in campaigns. Sometimes would-be candidates sue, and state officials defend ballot access restrictions on grounds of supposed "voter confusion." And unfortunately, the U.S. Supreme Court has, on occasion - for example, in Munro v. Socialist Workers Party - accepted this claim even when it was not coupled with actual proof of confusion.
Concerns about voter confusion are overblown - and the recall experience proves it. The two-part form of the recall ballot was very confusing, compared to a typical gubernatorial ballot - and to add to the potential confusion, candidates were listed in random, not alphabetical, order. But, somewhat surprisingly, the problems at the polls were relatively modest, and evidence shows most voters were able to navigate the ballot and cast votes consistent with their preferences.
The real question about ballot access should not be whether voters can handle a large number of names on the ballot (or candidates in the race) but if the voting machines can handle it. In some parts of California, voters had to handle numerous cards or papers in order to cast a vote. Voters should not be put to this task, which increases the risk of error and the time it takes to vote.
In sum, voting technology may at times provide a reason to keep the number of candidates reasonable. But voter confusion is generally not a good reason to do so - and should not be a mask for anti-competitive voting practices.
Lesson 3: Florida 2000 was No Aberration: The Need for Voting Reform Persists
Voting technology raises concerns beyond simply the machines' inability to handle the names of large numbers of candidates. Among the numerous recall lawsuits, one of the most serious involved the use of punch card voting machines in some California counties but not others. The claim was that the higher error rates of punch cards violated the constitutional right to equal protection.
A three-judge panel of the United States Court of Appeals for the Ninth Circuit issued an order delaying the election on this basis. But that ruling was later reversed by decision of a larger panel of the Court. However, the larger panel left open the possibility of post-election challenges in the event of a close election.
Fortunately for the courts, and for California, the lopsided final counts on both Parts 1 (should Davis be recalled?) and 2 (who should his successor be?) of the recall ballot allowed California to dodge a bullet. Given the large margins on both questions of the recall, there was no need to do a recount and further explore problems with California's voting system in the context of litigation.
Such a study would have revealed some troubling facts. Preliminary statistics from the recall show a big gap between punch card counties and non-punch card counties in the number of voters who failed to cast a recorded vote on Part 1 of the ballot. One study found the non-vote rate at 7.7% in punch card counties compared to 2.3% in non-punch card jurisdictions. These figures include both abstentions and votes that the vote counting machines (or voting machines) did not properly record.
Of course, a full study of these ballots will have to control for other factors. For example, voters in counties with punch cards might have been more likely to have deliberately abstained in Part 1. But this explanation seems unlikely. After all, Los Angeles and Alameda counties are fairly comparable counties in terms of political leanings and ethnic makeup, yet nearly 9 percent of voters in Los Angeles did not cast a recordable vote on the first part of the recall, compared to less than one percent of voters in Alameda, which used an electronic touch screen system.
These statistics illustrate a sad fact: very little has changed since the Florida 2000 fiasco, where the presidency hung on how to count a number of perforated holes in pieces of paper. California, Florida, Georgia, and Illinois have agreed to phase out punch cards (either because of litigation or the threat of litigation). But other states continue to use them.
It is a basic tenet of democracy that, so far as is practicable, everyone has roughly the same chance to cast a vote that will count. The public needs to pressure election officials to make that idea a reality.
Election laws must also be reformed before a problem occurs. No one bothered looking at California's 90-year-old recall laws until it was too late to fix the holes and inconsistencies in the law. Now is the time for each state to audit their election laws looking for problems in advance, so they can be prevented before they occur. Elections should not be plagued with lawsuits, but until each state takes a hard look at its laws, they will be.
Lesson 4: Conventional Wisdom About Money In Politics Is Right Only Sometimes
The recall process in California was not progressing very far until Representative Darrell Issa pumped millions of dollars into the process. As with the California initiative process, money sets the agenda. If you have enough money, the conventional wisdom goes, you can qualify anything for the ballot.
We will have to see if the same conventional wisdom applies to qualifying further statewide recalls. Perhaps voters will have recall fatigue - or perhaps Gray Davis was an exception to a general rule that voters are reluctant to recall a sitting elected official.
Another piece of conventional wisdom about the initiative process is that if you spend enough money against an initiative, it is likely to lose. That did not work in this recall election. Opponents of the recall spent at least $20 million opposing the recall, but it still succeeded.
The recall process may even spur campaign finance reform in California. Observers believe that Lt. Gov. Cruz Bustamante, a candidate on the second part of the recall ballot, lost considerable momentum because of significant contributions he took from Indian gaming interests - contributions that he allegedly tried to launder through an old campaign account.
After criticism from another candidate, the Independent Arianna Huffington, Bustamante came on board to favor public financing of elections. Schwarzenegger, too, ran against "special interests" and said he could be amenable to campaign finance reform. Yet Schwarzenegger himself donated $8 million on his own campaign--some of it designated as loans that he hopes to get paid back from donors no doubt looking for access to the new governor.
In the end, it is hard to say whether the success of the California recall will spur other recalls, either in California or elsewhere. But the lessons of the recall extend beyond this particular election, and point out both the power of American democracy and some ways we can improve upon it.
Copyright © 1994-2003 FindLaw
Richard L. Hasen, a professor of law and William M. Rains fellow at Loyola Law School in Los Angeles, is the author of The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press, 2003). He filed an amicus (friend of the court) brief supporting the plaintiffs in the California punch card litigation. Professor Hasen's further suggestions on how the recall should be improved may be found at the Findlaw collection online.
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Editorial Reviews: Richard L. Hasen's new book: The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press, 2003) will be published on November 1, 2003. You may pre-order the book from Village Books, our favorite independent bookstore by clicking on the author's photo.
Book Description
In the wake of the 2000 Florida election controversy, many Americans have questioned whether and how the Supreme Court should decide election law disputes. In the first comprehensive study of the issue since the Supreme Court decided Bush v. Gore, Richard L. Hasen rethinks the Supreme Court's role in regulating elections.
Hasen, drawing on the case files of Supreme Court Justices in the Warren, Burger, and Rehnquist courts, roots the Supreme Court's intervention in political process cases to the 1962 case Baker v. Carr, in which the Court first agreed to consider claims that a state legislature had violated the Constitution by failing to draw legislative districts with equal populations. The case opened the courts to a variety of election law disputes, to the point that the courts now control and direct major aspects of the American electoral process.
The Supreme Court does have a crucial role to play in protecting a socially constructed "core" of political equality principles, concludes Hasen, but it should leave contested questions of political equality to the political process itself. Under this standard, many of the Court's most important election law cases from Baker to Bush have been wrongly decided.
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