California's Illegal Recall Mess
by Fred E. Foldvary, Senior Editor
Living in California, I have been beset by a blizzard of news about the recall election madness. The recall itself is OK by me, as the chief responsible for the fiscal health of the state has not exerted the vision and leadership that would have avoided the plunge down the fiscal waterfall. The crisis was caused by excessive spending, and misguided interventions into the electricity market. What is coo-coo is the way the replacement governor would be elected.
If the majority of the voters elect to fire the governor, then the replacement candidate who wins the most votes becomes governor. With over 125 candidates on the ballot, if the recall goes through, the next governor will be elected by a rather small minority of the voters. There is no runoff among the highest vote getters.
How could such a ridiculous election method have been adopted? Don't blame the authors of the recall provision. They did not design this circus. The person who decided the method of qualifying candidates was California's Secretary of State, Kevin Shelley. He applied the state law that applies to candidates running in the party primary elections. That law specifies that candidates of the major parties qualify by paying $3500 and obtaining 65 signatures from members of that party. The winners of party primaries are then candidates for the general election.
But the candidates for governor in the recall election are not running in party primaries. I agree with the conclusion of some legal experts that the Secretary of State applied the wrong law to the recall. Indeed, the chapter of state law that the Secretary of State is using explicitly states that "This chapter does not apply to: (a) Recall elections ..." The Secretary should have applied provisions that apply to the general election, which specify that a candidate who bypasses the primary election must obtain 152,000 signatures, one percent of the voters.
In his article, "Court must fix recall election" in the West County Times, August 3, 2003, Daniel Borenstein called for the California Supreme Court to change the election method to the general election rules instead of the primary election rules. In the recall case Burton vs. Shelley, the contention was that state law specifically prohibits the rules selected by the Secretary of State. Unfortunately, the case was denied by the Court on August 7 by a vote of 5-2. The two dissenters were Chief Justice Ronald George and Justice Carlos Moreno.
Borenstein cites law attorney Fredric Woocher as saying that the case had the most merit of several that were brought to the Supreme Court. Borenstein also cites Loyola Law School elections law expert Rick Hansen, who also said the claim "may well have merit." Woocher researched the history of the recall rules and found that the general-election requirements more closely fit the intentions of the Progressive Era reformers who enacted the recall provisions in 1911. Woocher says they certainly intended more than the mere 65 signatures.
The legally correct method is, however, not in the political interests of the politicians who are in power. Their interest is to have such an absurd election method that the voters will instead vote to not recall the governor. Borenstein reports that attorney Mark Burton, who filed the suit, had talked with a lawyer at the Secretary of State's office, who said that they knew about the problem, and that if the election was to be different, someone would have to sue.
So it was up to the State Supreme Court to correct the misapplication of California's election laws, and in my judgment, they failed. The California Supreme Court, except for the two dissenters, is to blame for allowing this illegal absurdity to proceed. The ballots will be so crowded some will have to just display numbers and scorecard with the names.
So now Californians are confronted by over 125 candidates for the office of governor. Among the prominent candidates are lieutenant governor Cruz Bustamente and actor and political activist Arnold Schwarzenegger. Currently, the polls indicate that a majority of voters favor a recall. The names on the ballot will be in an order selected randomly.
Too bad that "none of the above" is not an option, because if Nobody won a plurality, they might have to start all over again, maybe this time with the correct rules.
-- Fred Foldvary
Copyright 2003 by Fred E. Foldvary. All rights reserved. No part of this material may be reproduced or transmitted in any form or by any means, electronic or mechanical, which includes but is not limited to facsimile transmission, photocopying, recording, rekeying, or using any information storage or retrieval system, without giving full credit to Fred Foldvary and The Progress Report.
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