Findlaw article on California Recall Election

[TahitiNut]

I tire of uninformed speculation and partisan rumor-mongering that too often passes as news and discussion. The FindLaw site is a resource I use when I want cogent and focused information. This is no exception. This article offers some well-informed and cogently discussed perspectives that're nearly impossible to harvest from the tabloidized press.

One of the speculations/rumors I wanted to chase down was whether a person's vote on a replacement Governor was preconditioned on how they voted on the recall itself. My immediate reaction, of course, was that such a condition would be a violation of Constitutional protections of both ballot secrecy and, in effect, establishing a partisan litmus test on one's right to vote. Indeed, if one were to interpret a "no" vote on the recall as a vote for Davis, then what's the difference between a recall election and an election for governor that placed a majority hurdle for a single candidate but a plurality hurdle for all others? (This seems to me to be a continuing substantive question.) It seems I was right. Nonetheless, there are still some questions of Constitutionality that remain to be resolved before this election can be held as defined in Californaa Election Law.

Of some significance is California Election Code §11382 which provides that "No vote cast in the recall election shall be counted for any candidate unless the voter also voted for or against the recall of the officer sought to be recalled." Now, how would they possibly enforce this provision if the recall question were on a separate ballot, or in a separate election, from the replacement election?? (What the hell were they smoking?) :eyes:

So, the question of whether a vote against the recall precludes a vote for one of the substitute candidates is answered "No". More interestingly, however, this particular section my be ruled unconstitutional in its entirety as establishing a voting eligibility criterion that's politically biased. Such a ruling would be very interesting in its effects.

Remember, this election is, for all intents and purposes, a rerun election for Governor in which the winner of the prior election is now required to obtain a majority of votes, while the challengers are merely required to obtain a plurality of the votes.

Democracy is in its death throes. Where's IRV when we need it?

[nothingshocksmeanymore]

1. Which is exactly why my argument that the Lieutenant Governor should

govern in the event of a recall is valid. Apparently there is a group planning to sue on this issue that I read in an action alert this morning.

There are too many ambiguities in the current law and as a matter of public policy, there is nothing to stop every ,illionaire in the state from financing the recall of a legitimately elected governor every six months. The state constitution s also vague on the matter and given that the liberal construction clause of the California state constitution is to err in favor of delivering power to the people, the court should address the clear misuse of a clause of the constituion being used to undermine that principle.

[Perky]

2. I agree

It a poorly constructed law whih in most case precludes the incumbent party from retaining the office.

[TahitiNut]

4. ... independent of whether most voters chose the incumbant!

That's what's so heinous in this. Any time a governor wins on the basis of a plurality, the second place finisher can use this "law" to stage a coup. It places an uneven requirement -- and seems to me to be a blatant violation of the Equal Protection provision of the U.S. Constitution! It's appalling!

[TahitiNut]

3. If there were any semblance of honesty in this,

a 'recall' would merely call for a new election in which anyone would be eligible that would normally be eligible. In my strong opinion, the costs of such an election should be borne solely by the challengers on the ballot, and not the People of California -- who're already bearing the 'cost' of having to turn out to have their voices heard.

[nothingshocksmeanymore]

5. I would not favor that due to the fact that that would punish those that

seek to remove a governor from office for valid reasons. I prefer my method as it leaves the spirit of the law in place, replaces the governor with an official elected by the majority who would govern in the event of the governor's death anyway, and leaves in place the recall process for that official should they be corrupt. I would, however, increase the percentage of votes from the prior election needed to commence a recall. 36 million people are paying for 1.1 million signatures.

[TahitiNut]

7. "valid reasons" should be specified in the law.

The impeachment clause cites "high crimes and misdemeanors." That's (almost) good enough for me. Even then the Vice President beomes President. The California law is a travesty. The California GOP Reich is totally at odds with America. (Talk about being "unAmerican"!)

[Clete]

6. My elderly husband, whose crankiness sometimes

causes him to spew out gems said today, "If we need to go the polls everytime an issue comes up to run the state, why the hell do we need a governor or legislators. They aren't doing their job if we have to."

[TahitiNut]

8. Shame on me ...

... for not putting "OMFG!!", "Nader", or "Greens" in the subject. {sheesh!} :eyes:

[DUreader]

9. Yeah a little hype in the headline helps, but so does kicking

kick

[Le Taz Hot]

16. LOL!

I hear you, TahitiNut. My threads are legendary for dropping in record time because they lack those 3 words.

People are confused for good reason -- the election law and the State Constitution conflict. Two voters in the Bay Area have filed a petition with the California Supreme Court in the hopes that this issue will be sorted out. I'm fairly sure the Court will take it. The problem, of course, will be that if/when the ruling doesn't go the way Issa and his thugs think it should go, then it goes to the U.S. Supreme Court and we all know how that is likely to go.

[TahitiNut]

18. It'll get interesting.

Tha California (Bear Republic) State Consititution provides:

ARTICLE 2 SEC. 18. A state officer who is not recalled shall be reimbursed by the State for the officer's recall election expenses legally and personally incurred. Another recall may not be initiated against the officer until six months after the election.

Will Davis write himself a blank check? (Interesting gamble.)

I don't see a clear conflict between the provisions of the state constitution and the elections law. The controversy seems to focus on the two words "if appropriate" in reference to election of a successor. The election law contains a similar phrase. Some would interpret this as implying that the Lt. Governor would take over. They have a case, IMHO. Since the laws and provisons for a recall include state officials most of whom have no mandated successor, I'd probably argue that a recall of the Governor calls for no election of a successor, that successor already having been provided for in both the Constitution and state law. Supporting this argument is the fact that, in California, the offices of Governor and Lt. Governor are separate and distinct elections. They don't run as a "ticket" (like the US Presidential election) but as separate candidates. California has often had these two offices filled with people from different political parties.

Other interpretations of the "if appropriate" phrase (added in 1974) seem to be specious. One extant interpretation has been that it applies to (appointed) appellate judges (or other appointed positions not filled by elections). This, of course, is at odds with the basic Constituional provision for a recall election, which says it's to "remove an elected officer."

Interesting times.

[TahitiNut]

10. What're the chances this survives a Constitutional challenge?

Hmmmm..? Can anyone say "Equal Protection"?

[TahitiNut]

11. {crickets}

:eyes:

[nothingshocksmeanymore]

12. I say kick it one more time

[Le Taz Hot]

17. See post #16

And, to my knowledge, I didn't misuse any words. B-) (Ref: "palatable" v. "palpable") ;-)

[Shrek]

14. Curious . . .what would be the Equal Protection argument?

As far as I can tell, the voters are unharmed -- they can retain Davis if they wish, and if not they can select his replacement. As long as no voter has his or her rights abridged, that seems legally sound to me.

So it appears to me that only the Governor could possibly have standing for a challenge. On what grounds do you think he could make an Equal Protection argument?

I'm not arguing, BTW, I'm just interested.

[TahitiNut]

21. The argument is that ...

... all votes carry equal weight. The way a "recall" election is artificially constructed, one candidate (the office holder) must receive a majority of votes, while other candidates only need receive a (possibly very small) plurality of the votes. Thus, those voters who choose the inumbant have their votes subjected to a higher hurdle than those who choose another candidate.

To see this, one must view the recall election in a "black box" fashion -- ignoring the artificially separate ballot measures. (I say 'artificial' in the true meaning of the word.)

The claim that the result of that election inherently makes the incumbant 'ineligible' to run for the very office (s)he holds is a specious contradiction of the reality: they are eligible to hold the very office to which they're elected. Since the result of the 'recall' election can leave them in that office, they're obviously eligible. By artificially calling them 'ineligible' merely because they didn't get a majority (and not applying the same majoritarian criteria to other candidates) is mere legalistic rhetoric that's not reflective of the reality.

Logically, one can see this more easily when one considers the amphiboly of the election itself. While, in one sense, the two (linked) ballot measures (recall and replacement) are purported to be seperate, it's clear they aren't when looks at the stated interrelationship between the two in the (probably unconstitutional) previously cited section of the election law which declares that only voters voting (yes or no) on the first ballot measure are eligible to vote on the second. Conversely, if the votes on the second ballot measure can be invalidated and ignored by a bare majority of the votes on the first measure, how can the votes be presumed to have 'equal weight' and how can the measures be viewed as 'seperate'?? It's clear then that the measures are artificially linked and the two must be viewed as, in effect, a single 'vote'.

Look at it another way. Any winner by plurality of an election has, by definition, received a majority of votes "against" them. Let's, just as a mental exercise, entertain the scenario that every election wherein the winner is selected by a plurality that's not a majority is followed (automatically) by a 'recall' election in which the candidates are the same or more. Let's also assume that voters make exactly the same choices and all voters in both elections are identical. What this means, in effect, is that nobody who wins by a plurality can survive a 'recall' and the overall result of the two elections is to place the second choice of the voters into office.

Now, if we were to hypothesize a steady stream of recall elections and consistent behavior by voters, we'd continue to remove these plurality 'winners' from office, make them ineligible for that office, and continue to replace them with candidates having even less support of the electorate.


On edit: Let me try another way of describing this. In the original election, the voters were aksed "whom are you FOR?" By inference, they were against every other candidate. That election already showed that the smallest majority were against the winner -- and larger majorities were against every other candidate. In a recall election, only one candidate (the incumbant) has the 'against' votes (re)tallied. The fact that (potentially) far larger majorities are 'against' the replacement who (probably) receives a plurality of votes (many of which may be, in effect, the second choices of voters whose first choice is the incumbant) is ignored. Thus, votes carry vastly unequal weights solely dependent on who the voter chooses, not even how the vote is interpreted. The degree to which this treats a voter's choice differently is, IMHO, extraordinary.



On edit: Let's try to remember that the USSC in Bush v. Gore reached so far as to say that voters don't get "Equal Protection" if, in manually recounting their votes, the "standards" for their interpretation aren't completely uniform across the scope of the election. We're not even talking about the weight of those votes in the election, but the manner in which a very small minority of those votes (i.e. that weren't 'clean' vis a vis the mechanism of balloting) are interpreted. While the USSC attempted to say their decision couldn't be used as a precedent, it's clear that they established a very demanding standard for how each vote is treated vis a via any other vote. The degree to which this contrived 'recall' election imbalances the weight of each vote dwarfs to even greater insignificance the magnified 'equality' the USSC alleged.

[DUreader]

22. Good info in this thread

kick

[Shrek]

26. Excellent explanation, thank you.

You are quite gifted at communicating a potentially complex idea in a clear and simple way. I am untutored in legal matters and yet I followed your exegesis quite easily.

It will be interesting to see if this argument is made during any of the inevitable litigation of this matter.

Edit : word omission

[TahitiNut]

28. (Wow!) Thanks!

I felt I was struggling to be clear, and failing miserably. :dunce:

I'm somewhat nonplussed by the opinion stated in the FindLaw article that an 'Equal Protection' challenge would probably not succeed. I don't know whether that opinion was based solely on the merits, solely on cynicism of the current USSC, or some (unquantified) combination of both. It seems to me (IANAL) the merits of such a challenge are very clear. Further, despite the Bush v. Gore decison, it's not clear to me that a majority of the USSC would reject such a challenge, even on the basis of their partisanship. I'd have to see a lot more discussion of that perspective before I would understand its basis.

Another way I'd be interested in seeing the 'recall' election posed to the voters, a way that'd make the 'equal protection' argument even clearer in comparison, would be if every replacement candidate were required to get a majority of favorable votes in a ballot question of the form:Should (insert name here) replace the current Governor of California, Gray Davis, for the remainder of his current term?
Merely considering the difference between this approach and the approach being taken would seem to me to highlight why the 'equal protection' argument is valid.

Does anyone really think there'd be a majority 'yes' vote on any one of these ballot questions? More than one of them? If so, then why not just have a new election in which all candidates are afforded an equal chance?

Even again, what if the 'recall' were follwed immediately by another 'recall'? Is there any doubt about the high probability that the 'winner' of the first 'recall' would certainly fail if subject to the 'recall' in the second? Unless one could answer 'yes' with absolute certainty, the 'equal protection' basis would seem to be clear.

[Mz Pip]

29. Terrific explanation

Simply put there could be 500,000 votes against the recall and 500,001 for it. Then someone with 65,000 votes could win the seat just because he had more votes than all the rest who are running.

Michael Savage could be our next Governor. Darryl Issa who is polling lower than Davis could be our next governor. Geez.

MzPip
:dem:

[TahitiNut]

32. Yes, and even worse,

All 65,000 of the 'winners' votes could've (theoretically) come from people who voted against the recall. In other words, the 'winner' could (theoretically) be someone whom NOBODY wanted as their first choice.

Maybe someone calls that 'democracy.' I don't. May be someone thinks that's 'equal protection' where every person's vote is supposed to carry equal weight, I don't. Perhaps I'm misunderstanding something, but a carefu reading of the state Constitution, the state election laws, the Federal Constitution, and many aritcles and analyses leaves me with that opinion.

[gristy]

35. Great stuff. Thanks!

Didn't even need those edits to get it :)

[fob]

37. Lets use some real world numbers...

From 2002 election (http://vote2002.ss.ca.gov/Returns/gov/00.htm)
There were 7,326,133 votes for governor. Gray Davis won with 47.4% of the vote, or 3,469,025 votes.

In that election each candidate faced the same question, Who do you want for governor?, and each candidate had the same burden, get the most votes. Bill Simon got 42.4% or 3,105,477 votes, not bad but still a loser.

In the recall election for Gray Davis to win (will assume the same amount of voters, practical or not) would need 3,663,067 (50 % plus 1 vote). However, with an assumption of 8 other candidates, the winner would need only 915,767 votes(12.5% plus one vote)! That's FEWER than required for the recall in the first place.

To the extreme, Davis could get 50% LESS 1 vote (3,663,066) and with 10 to 20 or more candidates the "winner" could have as few as 45,000 votes or 5% plus one vote!

In essence the recall says that one candidate,DAVIS, may have to get from 10 to 100 times the votes of the other candidates to win.

Also in a special election, in a non-prez election year, the total voters will most likely be far less than #'s used above, making it even more of a farce.

I DON'T RECALL! VOTE NO ON RECALL!

Go Gray "Bengal Tiger" Davis!

[TahitiNut]

38. Yes, read my "Just for grins" post #33 below.

I took the 2002 vote totals and ran a (reasonably?) hypothetical analysis of that election as though it were a recall. IMHO, such an analysis can form a "baseline" portrayal of the corruption of democracy inherent in this specious process.

[redeye]

13. A little off topic, about IRV

IRV positively sucks. It prevents the spoiler effect, but it becomes terrible once there are more than two viable candidates. If there are three candidates - a leftist, a centrist, and a rightist - each of whom has roughly 1/3 of the total first-place vote, with supporters of the centrist being equally divided among the other two candidates fro second-place and supporters of the two other candidates all voting for the centrist for second-place, then we can have some bizarre results.

If the leftist in total has the same number of second-place votes than the rightist, and has 1000 more first-place votes than the centrists who has 100 more first-place votes than the rightist, then the rightist will drop and thus let the centrist win by a 2-to-1 margin. However, if 200 leftists break ranks and vote R, then L, then C, instead of L, then C, then R, then the centrist will drop, transferring votes for the leftist to win with a bare majority of 600 votes.

In other words: voting against a candidate can make him win.

Moreover, counting IRV is a nightmare. It's impossible to proceed to round two until all of the votes in round one have been counted, and thus all ballots have to be sent to a central counting location before counting can begin (or else there might be tampering with ballots in the interim). It is theoretically possible to tally all permutations, but the number of such permutations is n! whereas n is the number of candidates, which means that the number of permutations is non-polynomial (Condorcet, by the way, also has a non-polynomial counting time but only if there are cyclical ties, while it can be reduced to a matrix of n² entries, which is polynomial).

[realFedUp]

15. In California you could find 1 million people

to sign petitions to remove the strawberries from Cheerios...

[Mz Pip]

19. Amen to that

I know people who signed the Recall petition just to stick it to Davis. They didn't really support the Recall or want Davis removed, they just wanted to make him squirm. Geez. Now we've got this. Be careful what you wish for.

I hope this does end up in the courts. I hope it's ugly and messy and pisses everybody off. Maybe folks will think twice before doing it again.

My AZ cousin said one of their Governor's was thrown out of office but it was for criminal wrongdoing. She's a Republican and said if she lived in CA she's be fighting this Recall.

MzPip
:dem:

[DUreader]

20. Well todays fish do appear to be strawberries, and FDA don't care

[TahitiNut]

25. Californians seem to have a great confidence ...

... in the resiliance of the People. In the way they deal with politics, they don't seem to be afraid that their state and nation is too fragile for activism, dissent, and "throw the bums out" movements. The "we can handle it" attitude seems to me to be far healthier than elsewhere, no matter how (transiently?) misguided. How many, for example, run away from impeachments nationally because they swallow the notion that it's a "terrible crisis" that "threatens our nation"? In my view, that attitude only serves entrenched political power -- treating it as far more essential than it really is. It's like children fearing they'd be orphaned -- rather than adults that're confident they can, with some cooperation from others, make their own way. In another sense, it's like the abused spouse syndrome -- fearing a change more than abuse.

[The Lone Liberal]

23. What happens if Davis Resigns.

How can a recall specifying Recalling Davis go forward when Davis would not longer hold the office?

[RevolutionStartsNow]

24. Nothing

If he resigns now, they would still hold the special election to elect a new gov. I believe. He had to resign before the recall petition was certified.

[The Lone Liberal]

27. The special election is held because the recall was sucessful

if the recall is specified to recall Davis and Davis is not in office, then there is no one to recall, the election is void.

[DUreader]

30. Important info in this thread n/t

ok I lied about n/t

KICK!!!

[DUreader]

31. OOOH! Look at thaT I made the Pretty Flames blossom. n/t

I lied again there is text here

[TahitiNut]

40. Guns, Abortion, Greens, Nader, Jews, DLC, and OMFG!!!

:shrug:

[DUreader]

43. HOLY SHIT!!!!!!! n/t

[TahitiNut]

33. Just for grins, let's look at the 2002 Election ...

... and pretend it was a "recall election." After all, Gray Davis was the incumbant, so that's really not so much different than a recall, right? :eyes:

If we take the actual vote totals from 2002 and then assign a percentage of the votes cast for Gray Davis to each of the other candidates (as though these were their second choices), then we have what's (in effect) a recall according to the differing 'rules,' right? For the sake of simplicity, let's assume that 10% of those voting for Davis (i.e. 'against recall') would've refused to vote for any of the other candidates. Using the same vote totals, here's how it could've turned out:

Gray Davis (D) .......... 3,140,043 (i.e. against recall)
For Recall .............. 3,493,289 (the total of 2002 votes for other candidates)
Bill Simon (R) .......... 3,125,580 (including 10% of voters for Davis)
Reinhold Gulke (AI) ....... 333,728 (including 7% of voters for Davis)
Peter Camejo (G) ........ 1,821,248 (including 47% of voters for Davis)
Gary Copeland (L) ......... 584,125 (including 14% of voters for Davis)
Iris Adam (NL) ............ 454,646 (including 12% of voters for Davis)

Thus, Simon gets the Governorship even though Gray Davis got more votes. (So, tell me, where's the 'equal protection'?) Why wouldn't all the voters 'for Simon' (or any other candidate) be asked to vote for a second choice??

Notice that Simon voters (and others), in effect, get two votes for Simon. Since we can reasonably interpret a vote "for" a candidate as a vote "against" all other candidates, the weight given any vote against Davis is aignificanly greater than votes 'for' Davis.

:shrug:

On edit: I'd be willing to take odds and bet that the Repugnants only run one candidate. Why? Because if they split the Reich, they could see a groundswell of 'second choice' votes going to the most 'liberal' of the alternatives, and splitting the GOP voters would make it quite possible for the Repugnants to lose. They may be corrupt, but they're schemers in things like this -- and their authoritarian propensities would make it feasible to keep the pretenders in line. Thus, we will very possibly see a "Republican candidate" that wasn't even selected (as in a primary process) by the rank and file GOP. "Smoke-filled rooms" anyone? Autocracy anyone? :eyes:

[TahitiNut]

34. {cough}

:eyes:

[Mz Pip]

36. One candidate

Issa's already filed and I can't imagine that twit Simon passing up a chance at this. I think McClintock is running. So that would be 3 repugs. I don't think Ahhhnold will run. He can make more money in bad Terminator sequels.

I hope Davis' legal team is looking into this equal protection angle. Of course, if Dems get off their butts and to the polls this won't be an issue, but it's one thing to walk by a petition gatherer and another to walk down to your polling place in order to save your State.

MzPip
:dem:

[TahitiNut]

39. While valid, that's not really the point.

The point I (ineptly?) tried to show is how the very design of a 'recall' is anti-democratic. It's overtly designed to make a second-place vote-getter 'win' in any election where nobody gets a majority.

In other words, by the same 'recall rules' Simon would probably have been deemed Governor in the 2002 election.

On edit: That said, I'll still take less than even odds (3 to 5?) that only one Repugnant will be on the recall ballot. Unless I'm missing something relevant, the outcome of the recall election is heavily dependent on the ratio of 'mainstream' liberals to 'mainstream' conservatives on the replacement question (#2 on the ballot).

Democrats are seemingly betting that if '#liberals' = 0, then Davis will win on the recall question (#1 on the ballot).

If they're wrong, and if the "against recall" votes have nowhere to go on the replacement question (#2 on the ballot), then it won't matter too much how many 'conservatives' are running -- a 'conservative' will win.

If they're wrong, and if the "against recall" votes have a 'liberal' choice on the replacement question (#2 on the ballot), then the number of 'conservatives' running will make a huge difference -- a 'conservative' will win only if the number of 'conservatives' is significantly less than the number of 'liberals'.

Trying to predict how Californians will vote is something on which nobody has a good track record. :shrug:

[gristy]

41. kick!

[TahitiNut]

42. Like this?

:kick:

[DUreader]

44. MISINFO still rampant people need to know this

kick

[oasis]

45. Yes indeed, a "rerun" election. A Repug rerun election.

What a record for democracy these patriotic zealots are racking up:The Clinton impeachment; the 2000 selection; the dubious Diebold involvement in 2002, and now this California recall.

And they want to spread this brand of democracy worldwide?

[meti57b]

46. KICK

:kick: