We can thank the lunacy of California’s system of direct democracy for the fact that deep blue California is on the verge of electing a deeply conservative governor. How could this happen in a state where Republicans make up less than one-fourth of the electorate and there are about as many Republicans as there are people who register as “decline to state” voters (California’s version of registering as an independent)?
The likely voters in this election almost certainly skew more conservative than likely voters in a regular election.
Over a century ago, to curb the power of special interests, California adopted processes to allow the electorate to have more direct power over their laws and public officials. In California, we have three forms of direct democracy — the initiative process, the referendum and yes, the recall. We use the initiative to bypass the Legislature and create laws. This means that with an idea and money to pay signature gatherers, you, too, can have your chance to enact new laws in California, even including amendments to the state constitution. We use the referendum to bypass the Legislature to repeal laws. And we use the recall to remove officials from office before their terms expire.
The recall isn’t unique to California. In fact, 19 states allow recall elections. If the recall of California Gov. Gavin Newsom is successful, it could open the door to similar elections in other states.
Recall elections in California involve two questions. First, should the elected official be recalled? Second, if the official is recalled, then who, among a list of qualified candidates, should fill that position? (If the official isn’t recalled, the second question, of course, becomes moot.)
In 2018, Californians elected Newsom, a longtime Democratic politician who was then the lieutenant governor, to be governor of the Golden State. And seemingly not long after Newsom arrived home from his inauguration, his critics began the steps to recall him. Efforts to recall California governors are nothing new, but only one has made it to the ballot, and it was successful. In 2003, Gov. Gray Davis was recalled and replaced with the so-called Governator, Arnold Schwarzenegger.
The effort to recall Newsom gathered steam last year, when, contending with an unruly virus and frustrated about being stuck at home, some voters blamed Newsom for, among other things, stay-at-home orders. The real boon for the recall effort came when a judge extended the time to collect enough signatures for the recall to qualify for the ballot.
Taxpayers now face a price tag of around $270 million for a recall election for a governor who faces re-election less than 14 months after Sept. 14, the recall election date. As a public policy matter, it’s worth asking whether the public funds wouldn’t be better spent on the people of California, as opposed to sending ballots to and counting ballots of the people of California in what is likely to be a low-turnout election.
There are reasons other than voter turnout that Newsom might be kicked out of office.
But here we are, facing a recall election and looking at polls that show it’s a toss-up whether voters will retain or remove Newsom. Again, how could this happen in decidedly progressive California? A special election like a recall, which isn’t held on a day when we are voting for anything else, is likely to bring out more conservative voters than the average members of the electorate. So the people who decide to fill out and return their votes by mail or to go to polling centers are unlikely to be representative of the electorate. Put another way, the most likely voters in this election almost certainly skew more conservative than likely voters in a regular election.
There are reasons other than voter turnout that Newsom might be kicked out of office. He has made some unforced errors. He didn’t appeal the judge’s decision to grant the recall proponents more time to gather signatures. If an appellate court were to have overturned that ruling, it most likely would have stopped the recall effort in its tracks.
And then, of course, there are the two words that have echoed among the California political intelligentsia for more than half a year now: French Laundry. Late last year, Newsom attended a birthday party for a friend and lobbyist at the exclusive and exclusively priced restaurant. He did so when he was urging Californians to limit interactions with people from other households and to generally just stay put.
Who knew one dinner be so damaging to one politician? It’s not like this was a night of drugs and debauchery. But everything about the dinner, from the apparent hypocrisy to the out-of-reach price tag to the hobnobbing with lobbyists, fed into many preconceived notions about Newsom. When you’re already viewed by some as a hypocritical, out-of-touch elitist, going to a restaurant where the meal can run you upward of $350 a person in the middle of a pandemic may not be the wisest move.
Newsom’s handling of the recall only feeds into the notion that he is an ambitious politician first and a public servant second. How else can we explain his campaign’s urging people not to vote on the second question on the recall ballot, which asks us whom Newsom’s replacement should be if the recall is successful? While it’s a political win for Newsom if he can point to low voter turnout for the second question and argue that none of the candidates gained any traction with the electorate, it’s bad public policy to urge people not to weigh in on the person who could be their next governor.
Efforts to recall California governors are nothing new, but only one has made it to the ballot, and it was successful. Will all of these political machinations to retain or recall Newsom be moot? A lawsuit alleges that the recall process itself may be unconstitutional if Newsom is recalled but fewer people vote for his replacement than vote for him to be recalled. Imagine a scenario in which 51 of 100 people who return ballots vote in favor of the recall and nine of those 100 people vote for Larry Elder, but all of the other candidates on the ballot get only eight or fewer votes. This means that even though 49 of the people voted to retain Newsom and only nine people voted for Elder, Elder would be our next governor. Under the state constitution, Newsom is prevented from being listed as one of the candidates. Those suing to have the recall declared invalid argue that this arrangement violates the equal protection and due process clauses of the U.S. Constitution by violating the principle of one person, one vote. The challengers allege that voters who vote in favor of the recall get two votes, “one to remove him and one to select a successor,” while voters who vote against the recall are limited to one vote “to retain him and that he not be recalled.” The challengers conclude that “a person who votes for recall has twice as many votes as a person who votes against recall.” The suit is unlikely to succeed. The relief the challengers are seeking is that the recall be canceled or that Newsom’s name be added to the ballot. Let’s leave aside for a moment the administrative nightmare that would occur if they win, which includes a dumpster fire of wasted ballots. The suit faces significant legal hurdles. First, the legal arguments fall apart when we acknowledge that the two questions voters will face on or before Sept. 14 in fact constitute two separate electoral inquiries that appear on the same ballot for the sake of administrative efficiency. If we instead imagine that on Monday voters decide whether or not to recall Newsom and then on Friday vote on his replacement, the one person, one vote arguments disintegrate. Second, as Dean Vikram Amart of the University of Illinois College of Law wrote almost two decades ago, “States exclude people who might be the most popular candidate from running, and winning, all the time.” Take but one example: term limits. Even if the lawsuit fails, as it should and most likely will, it is well past time to reform California’s system of direct democracy. We can start with the recall. There is no reason to allow a minority of voters to thwart what is almost certainly the will of the electorate. If Newsom is recalled, the number of voters the candidate who replaces him will get is bound to be smaller than the number of votes Newsom got in 2018 or is likely to get next year. The irony is that the recall, intended to empower the people, can actually undermine their votes.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
