Paul Finkelman
Ilya Somin wrote:
I think Mark's points here are mostly well-taken. But it is important to see their systematic implications. Sandy's concern that a candidate might be elected by a plurality despite the fact that the majority of voters strongly dislike him/her is an objection not only to the recall but to all first-past-the-post electoral systems. But what mitigates (though not completely solves) the problem in most such systems is the strong incentive of political factions to form coalitions to avoid it. That is why we have 2 parties in the US rather than 4 or 6 or 8, and most other first past the post electoral systems also lead to political systems which have only 2 major parties.In the case of the California recall, CA Republicans and independents must decide whether they dislike the prospect of a Bustamante governorship enough to form a coalition around the Terminator. If many Republicans choose to vote for McClintock despite knowing that it makes Bustamante's victory more likely, that is a sign that they are not THAT fiercely opposed to a Bustamante governorship, not enough to make compromises to avoid it. As to Gray Davis' not being able to run in Part 2, it is actually a benefit to the Democrats. If both Davis and Bustamante were on Part 2, they would split the Dem vote and hand the governorship to Arnold. If Davis was the only major Dem candidate, he would probably poll fewer votes than Bustamante alone will because of Davis' extreme unpopularity (which of course is what led to the recall in the first place). In fact, a good reason for NOT allowing the sitting governor to be a candidate on Part 2 of the recall is to allow his Party to distance themselves from him by running an alternate candidate, if they so choose. They can't as easily do this if the sitting Gov is still in the game. Furthermore, there is stronger reason to believe that a sitting governor who is rejected by a majority in a binary recall vote really is anathema to a majority of voters than that the same is true of a candidate who gets only a plurality in a multicandidate vote. Given the extreme rarity of recalls and voters' bias in favor of incumbents, a governor actually rejected in a recall (Davis would only be the second in the history of the US) would have to be highly unpopular indeed. For these reasons, I don't think that either the absence of a runoff or the rule against letting Davis run on Part 2 make the system irrational in a constitutional sense or even highly undesirable, though I think a runoff would be a good idea on policy grounds. Ilya Somin On Mon, 15 Sep 2003, Scarberry, Mark wrote:I appreciate Sandy's agreement, in another post responding to Ed, that paper ballots would seem to solve the problem. With respect to the question Sandy poses for me about the rationality of the process of electing a successor to a recalled governor: I suppose the reformers thought that the Lt. Governor would likely be part of the same "machine" as the governor. The reformers were not so concerned about individual politicians as they were about political machines that were in the pocket of the railroads, etc. That, I think, is why the California Constitution does not provide for the Lt. Gov. to succeed a recalled Governor. In this case, many of those who think Gov. Davis is controlled by public employee unions and other interest groups think Lt. Gov. Bustamante is even more controlled by them; they note his taking of $2 million from Indian gaming interests in recent days. The process for electing a successor is not, in theory, perhaps very good. But "as applied" in this election it's quite reasonable. Assuming Gov. Davis is recalled, either Lt. Gov. Bustamante will be elected, or Arnold Schwarzenegger will be elected. There is perhaps some slight possibility of State Sen. Tom McClintock being elected (perhaps if "Ahnold" dropped out for some reason). If the Lt. Gov. is elected then this will be a result in line with Sandy's suggestion. If one of the others is elected it will be because the voters in this heavily Democratic state have rejected the Democratic establishment and given more votes to a Republican (despite Republican voters being split between two candidates) than to the only serious Democrat in the race. As a practical matter, the only way Arnold can be elected is if he can poll more votes than the establishment Democrat and more votes than the conservative Republican. He might not have a mandate, but he would have considerable democratic legitimacy. By the way, despite what some of you may think about California, neither child star Gary Coleman nor porn star Mary Cary is likely to be elected. All this hoopla about a circus of 135 candidates is amusing but irrelevant. This is a 3 person race, with a few others likely to get 2% or 3% each. If Sen. McClintock drops out (despite his adamant denials), then it will be a two person race with a few minor additional candidates. Mark S. Scarberry Pepperdine University School of Law -----Original Message----- From: Sanford Levinson [mailto:[EMAIL PROTECTED]] Sent: Monday, September 15, 2003 3:38 PM To: [EMAIL PROTECTED] Subject: Re: Ninth circuit and the recall Mark Scarberry writes that Even though Sandy does not like the recall process, it was designed, together with its time limits, to allow the people to get rid of a governor who was harming the state. I I have no particular objection to a recall as such. Indeed, I would happily recall the present occupant of the White House if I could. What I think is irrational is joining the recall with an election process that does not in the least guarantee that the winner won't equally "harm the state." After all, this is scarcely an objective notion. What we can say is that a recalled governor is deemed by 51% of the voters to be "harming the state." What can't we say with equal confidence that a person who gets only, say, 29% of the vote is deemed by the remaining 71% to be potential "harmful to the state"? Richard Friedman makes a valiant attempt to defend the rationality of the process, but, frankly, he doesn't persuade me. Or, more to the point, he vindicates Bob Nagel's brilliant student note many years ago that literally anything can be made to pass the test if one is allowed to describe the law in question with extreme specificity. (Does Richard believe that Cleburne was correctly decided under his generous test?) If Davis is a menace, then the California constitution supplies a good post-recall answer: Let the lieutenant governor succeed to office. This makes especially good sense in California, where Governor and Lieutenant Governor scarcely run as a "team." Why isn't this the perfectly adequate solution to Mark's concern expressed above? sandy
-- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED]
