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Part 1. Recall efforts underway
in Minnesota, Wisconsin and Nevada may feel invigorated by the California
recall, but they are seen as “do-overs” for poor sports without any chance of
success. However, the evidence of voter
anger does not bode well for incumbents in 2004. Links are live. - KWC California recall unlikely to be repeated
elsewhere Jason White,
Staff Writer, Stateline.org, Thursday, October 9,
2003 >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> Part 2. California dodged a bullet this time. If the vote had been closer, it would
have triggered a closer examination into the vote counts. Maybe we should be skeptical about how
quickly and efficiently everything went in this large state? Learning from the California Recall
Experience 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. 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 in this
collection online. |
