Vargas: Reforming the recall process

With the attempted recall of Gov. Gavin Newsom now an absurdly expensive footnote in the pages of history, the question of reform looms large.

Demands for reform began almost immediately, as the magnitude of the recall’s failure—and the waste of more than a quarter of a billion dollars—became apparent less than an hour after polls closed. Since then, a UC San Diego survey of registered voters has confirmed there’s overwhelming support for “major reforms” to the recall process, including a surprising 52% of Republicans.

Democratic legislators were quick to add their support for reform. Assemblymember Kevin Mullin, a member of the Assembly Committee on Elections, called the effort a “$276 million waste just to reaffirm 2018’s results.” A few weeks after the recall, Assemblymember Marc Berman—who serves as chair of the elections committee—told Inside California Politics, “The biggest issue for me is how undemocratic the current process is… The governor can be recalled and replaced by somebody else who received less votes than the governor did.”

Erwin Chemerinsky, a renowned constitutional scholar and dean of the UC Berkeley School of Law, has argued that this system is not only undemocratic, but may violate the U.S. Constitution as well.

The election committees in the California Assembly and Senate have announced plans to hold hearings on the subject beginning this fall, suggesting constitutional amendments to reform the recall process could be on the ballot in 2022 or 2024. If you’re anything like me, you probably want to know what some of the leading proposals are, so I did some research to help you out:

Small Changes

The smallest and perhaps easiest change would be to allow Gov. Newsom to appear on the ballot as a candidate. In short, the first question would be eliminated, and it would only be one question: Which of these candidates should be governor? Newsom would appear in the same list as everyone else. This would resolve much of the confusion that emerged around the two-step process.

Another proposed small change would be to eliminate the “replace” feature of the election and simply elevate the lieutenant governor in the event of a recall. This reform has gotten a considerable amount of attention, given that it effectively eliminates the incentive for the out-of-power party to roll the dice on a recall. Current Lt. Gov. Eleni Kounalakis has indicated she’s not a fan of this idea, however. At a forum sponsored by UC Berkeley, Kounalakis explained, “You should not have a system that incentivizes the lieutenant governor to want to see the governor fail.”

Big Changes

A survey conducted by UC Berkeley and the L.A. Times offers three additional changes that enjoy majority support, but require a somewhat larger change to the recall process.

First, the most popular idea in the survey—supported by 63% of respondents—would be to add a runoff election if none of the “replace” candidates reaches 50% of the vote. This would avoid the profoundly undemocratic scenario where a recalled governor receives more votes than the replacement. This reform seems like a necessity given the constitutional concerns with the current system.

The second reform—supported by 60% of respondents—would be to limit a recall to only when the governor has committed unethical or illegal conduct. It’s not clear how, or even if, such a rule could be enforced.

The third reform—supported by 55% of respondents—would be to double the number of signatures required in order to put a recall on the ballot. Currently, the number of signatures required is 12% of the number of voters who voted in the last gubernatorial election, which is about 1.6 million. The reform would be to increase this to 25%, meaning about 3.1 million votes would be required.

Given that the effort to recall Newsom only just barely managed to secure the 1.6 million signatures needed, an increase would effectively put a recall out of reach in all but the most extreme—and bipartisan—of circumstances.

Personally, my position has not changed. Direct democracy doesn’t work. The framers of the U.S. Constitution had nothing but scorn for the idea of direct democracy and their concerns have been born out by more than a century of experimentation in California. We ought to do away with it all together.

Sadly, a majority of Californians want to prolong this doomed experiment. That being the case, then we ought to at least ensure a significant portion of the electorate is behind the idea of a recall before wasting a quarter of a billion dollars on the endeavor. And in a democracy, it would be nice if the winner was elected by a majority.

San José Spotlight columnist Michael Vargas is a business and securities lawyer and a part-time professor at Santa Clara University Law School. Vargas also chairs the American Bar Association’s committee on Business Law Education and serves on the executive board of the Santa Clara County Democratic Party, and on the boards of BAYMEC and the Rainbow Chamber of Commerce. His columns appear every second Thursday of the month.