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Elect to Resolve Balloting Quandary

Numerous Suits Challenging Vote Indicate State's Recall Laws Are In Chaotic Mess

By Richard Hasen

August 18, 2003

Noting ambiguities and internal contradictions in the state's recall laws, state Supreme Court Chief Justice Ronald M. George has called on the Legislature, the Constitution Revision Commission and the California Law Revision Commission to turn to recall-law reform after the current recall ends. George made the plea in his dissent from the court's refusal to hear the emergency writ of mandate filed in Burton v. Shelley a few weeks ago.

George is correct that urgent reform is needed, and thinking about reform should start now. Even if the current recall is unsuccessful, the genie is out of the bottle. We can expect to see more recalls soon.

The dozen recall-related lawsuits are a testament to the fact that California's recall laws are a mess. To give one prominent example, Elections Code Section 11381 provides that the usual nomination rules for candidates generally apply to recall elections. But the "usual" nomination provisions explicitly provide that they do not apply to recall elections, under Section 8000(a).

Here are five changes to California's recall election provisions that should be considered, some of which will require a constitutional amendment passed by the voters to become law.

• Increase the signature requirements to recall elected officials. For statewide offices such as governor, California uses the relatively low signature threshold equal to 12 percent of the number of voters casting votes in the last election for that state official. Calif. Constitution, Art. II, Sec. 14. For members of the Legislature, members of the Board of Equalization and judges of the Court of Appeal and trial courts, the threshold is 20 percent of the last vote for the office.

These percentages should be increased to 25% as it is in most states. Even with that higher number, the Gray Davis recall likely would have qualified, but a higher threshold will remove the cloud of a recall from hanging over the heads of most elected officials.

• Increase the nomination signature requirements. With a 65-signature/$3,500 filing fee requirement to appear as a successor candidate on the recall ballot, we have a very crowded ballot that will complicate voting. People wanting a little free publicity but not interested in being governor or influencing the debate should not be able to gain access so easily to the ballot.

Candidates should have to show some serious support before appearing on the ballot. Perhaps the signature requirement to recall a statewide officer should be raised to 50,000. Such a figure will indicate that the candidate is serious and able to organize an effective campaign.

• Increase the time between the certification of the recall and the date of the election. The state Constitution requires that the recall election be set 60 to 80 days after certification. This limit does not give election officials enough time to organize their efforts and candidates enough time to collect signatures.

On the local level, recall elections are set between 88 and 125 days after certification. This is more reasonable. State elections require more lead time, given coordination issues between the secretary of state and local election officials.

Perhaps, given current experiences, the recall election should be set no earlier than 90 days after certification.

• Implement some procedure, such as a runoff, to narrow the successor candidates in part two of the recall ballot. Under current law, if the governor is recalled, his successor is chosen on the same ballot with a plurality vote, meaning someone who gains as little as 15 percent of the vote could be the next governor.

A plurality rule without any runoff is a recipe for illegitimacy. A better system would require a candidate to gain greater support. One way to accomplish this task is to have a runoff in the event the recall is successful, comprising the top candidates identified on the recall ballot.

Another possible fix for the plurality rule was proposed by Vik Amar, a professor at Hastings College of the Law. Amar suggested using the "single transferable vote," or instant runoff voting, as has been adopted for future elections in San Francisco. Under this system, a voter ranks candidates, and second- and third-choice votes get counted under a formula that picks a majority winner.

• Clean up the inconsistencies in the recall law, and make sure that the laws do not violate the U.S. Constitution. Much of the recall litigation in state and federal courts resulted from poor drafting of recall statutes and constitutional provisions. A careful rewrite will avoid lawsuits.

Law revisers also need to spend serious time making sure that the recall provisions work together and protect everyone's constitutional rights.

The recall is an awesome power in the hands of the people. It should be crafted to accomplish the people's will in a coherent and useful way.

Rick Hasen is a professor at Loyola Law School and author of "The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore."