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All That Glitters Isn’t Gold in the Golden State: The Current State of California Recall Elections

Election Law Society · October 17, 2022 ·

By Caleb McClain

As a native of the Los Angeles area, one of the most enduring local news items of late from  home has been the repeated attempts to mount a campaign to oust freshly elected District Attorney George Gascón. After the recent failure to recall California Governor Gavin Newsom, this LA County native can only stop and wonder what is this whole recall business our state has found itself so marked by.

Answering this question requires us to step back a bit and first ask: just what is a recall?  A recall is simply put a voter-led effort to remove an elected official before their term of office expires. Currently nineteen states and DC allow for a recall of elected officials. In California, a recall begins by circulating a notice to recall a specific official. Then a recall petition is circulated in the required jurisdiction to gain the required number of signatures, which varies based on whether it is a local or state elected official. If the required number is gathered, an election is held to decide if the official will be recalled and, if so, who will replace them. Some states, such as Alaska, have specific requirements to initiate a recall but California is not among them.

Recall elections emerged in California in 1913 as part of then-Governor Hiram Johnson’s progressive era reforms that also introduced ballot initiatives and referendums to the state’s election framework as a way to take power back from corrupt special interests. Since 1913 there have been over 179 recall attempts of state officials, the majority of which have been from the 1980’s to the present mostly concern the governor or state assembly members. Of the attempts, only eleven have actually qualified for the ballot with only six being successful. The most famous of these was the 2003 recall of Democratic governor Grey Davis after a series of  policy and state financial crisis’s and his replacement by “The Governator” himself, Arnold Schwarzenegger.

Critics of California’s recall system have noted several major problems with the process. The first of these is the incredibly low bar for signatures to trigger a recall election. Currently a recall only needs to gather 12% of the vote to proceed for a statewide office like the governor. That breaks down to around 1.5 million votes. This  sounds impressive, until you consider that California has a population of approximately 39 million people-of which almost 25 million are eligible to vote and over 22 million are fully registered. As Secretary of State Shirley Webber puts it “… [i]s it reasonable to have such a low bar for recall . . . [t]here’s always 10 to 15% who do not like somebody.”

The second is that recalls are an expensive process. The recall of Governor Newsom cost the state $200 million in taxpayer money which, while fortunately underbudget, is still a significant unexpected expense even for a state a large budget surplus.

Third, there is also concern that recalls function less as a voter accountability tool than a vehicle for partisan attacks. The frequency of recall attempts can be neatly mapped onto the growth of partisanship in California, and with the power of the internet and social media it is easier than ever for dissatisfied individuals to find each other and organize. This is further supported by the very partisan attitudes toward reforming the recall process.

Fourth is the charge that because of the way the recall process is, in practice, it is deeply undemocratic. One quirk of California’s recall process is that two questions are asked on the ballot. The first is whether if the official in question should be recalled, and the second is if so, who should replace them. The fear on the part of many is that an official could be recalled by the majority of voters but their successor could win without a majority of the vote. All they would require is more votes than their rivals.

Finally, there is the question about how useful a recall is, even when successful. Consider the first ever recall governor, North Dakota Governor Lynn Frazier, back in 1921. Governor Frazier’s recall had more to do with internal partisan squabbles than any alleged unfitness or corruption; he was even elected to a US Senate seat the next year and served there for three terms. Nor is California’s historic recall of Grey Davis an unqualified success. While it is true that Davis was historically unpopular when voters went to the polls in 2003, much of that was due to the Enron energy crisis which was largely out of his control. Ultimately his replacement, “The Governator,“ left office with the same approval rating as Davis. This was due in no small part to the aftereffects of the 2008 global recession, something also out of his control.

Despite these flaws, recalls do still remain popular amongst the voting public, with over 86% percent of CA voters believing it is a good thing to have and other states seeing comparable levels of support. That said, over 66% of voter agree that some level of change to the recall process is needed. Several California political figures have come together proposing various changes, including members of the state assembly, the Secretary of State Shirley Webber, and even recalled governor Grey Davis. Among the various proposals for reform are:  (1) increasing the number of signatures needed to trigger a statewide, (2) allow an official  being recalled to run as a replacement, (3) require a certain bipartisan threshold for signatures, and (4) allowing the lieutenant governor to serve if a recall succeeds until a new election can be held. Ultimately, any change to the recall process would require changing the California Constitution and be subject to the approval of the voters who are fond of the power given to them.

So What if the Ohio Supreme Court Found the Ohio Congressional-District Plan Unconstitutional?

Election Law Society · October 14, 2022 ·

By Darian Kanouff

On July 19, 2022, the Supreme Court of Ohio ruled (in a 4-3 split) that a remedial congressional-district plan, adopted on March 2, 2022, violated Article XIX, Section 1(C)(3)(a) of the Ohio Constitution. This decision follows the court’s previous finding that the originally adopted congressional-district plan was also unconstitutional. Despite this ruling, a new plan has not been created, seemingly also in violation of the Ohio Constitution.

The General Assembly passed the first congressional-district plan in November 2021. The Supreme Court of Ohio held on January 14, 2022, that the plan violated the state constitution’s provisions that a redistricting plan may not “unduly favor[] or disfavor[] a political party or its incumbents” or “unduly split governmental units,” since the plan “unduly favored the Republican Party and disfavored the Democratic Party” and “unduly split Hamilton, Cuyahoga, and Summit Counties.” Under this plan, despite receiving merely 53% of the popular vote in recent elections, Republicans were likely to win 80% of the seats (12 out of 15). The court ordered, pursuant to the Ohio Constitution, that the General Assembly pass a new constitutionally-compliant plan within thirty days, and if the legislative body failed to do so, that the Ohio Redistricting Commission pass a plan within thirty days of the General Assembly’s failure. Because the General Assembly failed to pass a plan within 30 days, the responsibility fell to the Ohio Redistricting Commission, which passed the second congressional-district plan on March 2.

The Supreme Court of Ohio held that the March 2 plan also violated Article XIX, Section 1(C)(3)(a) of the Ohio Constitution (i.e. that the plan “unduly favored the Republican Party and disfavored the Democratic Party”). Specifically, the court found that the petitioners proved the constitutional violation “beyond a reasonable doubt” through comparative analyses and other metrics that demonstrated that the plan “packed” and “cracked” Democratic voters, turning “districts that would otherwise be strongly Democratic-leaning [into] competitive or Republican-leaning districts.” The court found that the “best-case scenario” under the March 2 plan would result in the Democratic party winning 4 of the 15 seats (27% of the seats), noting that the plan is “only slightly less favorable to the Republican Party . . . than the original plan.” The court ordered the same remedy as before, pursuant to the Ohio Constitution: that the General Assembly pass a constitutionally-compliant plan within thirty days, and if it does not, that the Ohio Redistricting Commission pass a constitutionally-compliant plan within thirty days of the General Assembly’s failure.

Thirty days after the court’s order on July 19, the General Assembly had not created a new plan; this time, however, the Ohio Redistricting Commission did not take up the task. Why not? The Ohio House Speaker, a former Ohio Supreme Court Justice, Bob Cupp, believes that the General Assembly has actually not missed its court-imposed deadline. He claims that because “congressional redistricting includes elements of U.S. Constitutional and federal law,” the legislative leaders have the option of appealing the state court’s decision to the Supreme Court of the United States. The Rules of the Supreme Court of the United States provide that an appeal to the Supreme Court of the United States must be filed within ninety days of a state high court’s final judgment and the Ohio Constitution provides that the thirty day clock for redistricting begins on the last day on which an appeal could have been filed. Thus, he argues that the General Assembly has thirty days to create a new map beginning on October 17 (the purported deadline for appealing the case to SCOTUS). The legal director for the ACLU of Ohio, Freda Levenson, disagrees that the case is appealable to the Supreme Court of the United States.  She asserts that “[b]ecause the [Supreme Court of Ohio]’s order to draw a new map ruled purely on matters of Ohio law, it is not appealable in federal court.” 

While no action has been filed challenging the General Assembly’s and the Ohio Redistricting Commission’s failure to adopt a new plan within thirty and sixty days, respectively, all eyes are on the General Assembly as the supposed October 17 deadline approaches for the Ohio legislative leaders to appeal their case to the Supreme Court of the United States.

Voting rights groups and other organizations are distressed by the Republican Party’s supposed usurpation of the redistricting process, as it is in direct contrast with the Ohioans’ demonstrated preference for limiting partisan gerrymandering (more than 70% of Ohio voters voted to approve the 2018 amendment containing the constitutional provisions at issue here). However, because the Ohio Constitution’s only remedy for such violations is voiding the unconstitutional plan and requiring the General Assembly or Commission to create a new one, the Republican party had the option to “run down the clock,” resulting in the unconstitutional March 2 plan being used in the May primaries and the upcoming November election. “Running down the clock” could have another potential benefit to the Republican party: the executive director for the League of Women Voters of Ohio, Jen Miller, thinks the Republican party may be elongating this process to wait and see if the state supreme court justices elected this November will be more sympathetic to the party’s positions on line drawing.

Those disappointed in what has happened are considering further amendment to the state constitution. Among the considerations are an independent redistricting commission (as opposed to the current partisan commission, which consists of the Governor, the Auditor, the Secretary of State, and individuals appointed by the majority and minority leaders of the state legislature) or stronger checks and balances among the government branches. However, such bolstered amendments may not achieve what their proponents hope for if the independent state legislature theory (a theory which purports that all parts of the election process, including redistricting, fall solely under the purview of the state legislature, and are not subject to interference from the other branches) is adopted by the Supreme Court of the United States this term in Moore v. Harper.

On The Flip Side: Ballot Proposals In New York State

Election Law Society · April 1, 2022 ·

By: Stephanie Perry

State of Elections blog posts are written by William & Mary law students who have opted into studying election law in all its nuances. We sweat the difference between a racial gerrymander and a political gerrymander, the distinction between an expenditure and a campaign contribution. That said, this blog writer was genuinely confused on the first (and second and third) read by the language and content of Ballot Proposal 1 that appeared on ballots across New York state on November 2, 2021. “Amending the Apportionment and Redistricting Process” is the title of Proposal 1. There are tough topics in an Election Law class, but I had hoped the framers of the ballot question would boil it down to its simplest terms for an audience with lesser election law literacy than a second-year law student.

This was not the case. Instead, the ballot question reads: “This proposed constitutional amendment would freeze the number of state senators at 63, amend the process for the counting of the state’s population, delete certain provisions that violate the United States Constitution, repeal, and amend certain requirements for the appointment of the co-executive directors of the redistricting commission and amend the manner of drawing district lines for congressional and state legislative offices. Shall the proposed amendment be approved?”

[Read more…] about On The Flip Side: Ballot Proposals In New York State

South Carolina and the Free and Open Elections Clause

Election Law Society · March 28, 2022 ·

By: Anna Miller

In May 2020, the Supreme Court of South Carolina was asked to rule on whether the COVID-19 pandemic constituted enough of a “physical disability” to allow all South Carolina voters to vote absentee in the 2020 election. Currently, South Carolina election law requires absentee voters to have an approved reason for casting an absentee ballot, including being unable to cast an in-person vote due to physical disability. South Carlina Code Section 7-15-310 defines physical disability as “a person who, because of injury or illness, cannot be present in person at his voting place on election day.”

In Bailey v. SEC, the South Carolina Democratic Party sued the South Carolina State Election Commission to reinterpret this provision in light of the global pandemic, which would allow every voter to vote absentee without changing South Carolina’s election laws. However, while this case was pending before the South Carolina Supreme Court, the South Carolina legislature made temporary changes to the election law allowing regions under a state of emergency declaration to vote absentee without a stated reason.

[Read more…] about South Carolina and the Free and Open Elections Clause

Montana: Changes To Voting Laws In Wake of 2020 Election

Election Law Society · March 23, 2022 ·

By: Kelsey Nickerson

Montana is one of the largest states in the county, but unlike its counterparts Texas and California, it is home to relatively few people and only accounts for 3 electoral votes. The state had some close elections as of late, and with a relatively small population, a small number of votes can play aa large part in election results. As in most states, the 2020 Election inspired Montana to enact much more stringent voting laws relating to registration, identification, and absentee voting. Many of these laws, despite the obvious problematic result of disenfranchisement of indigenous voters, were upheld under Section 2 of the Voting Rights Act in the Supreme Court’s decision in Brnovich v. Democratic National Committee this past summer. In Montana, however, a new group has challenged the restrictive bill: young voters.

HB 506, along with instating various redistricting criteria, requires that “[u]ntil the individual meets residence and age requirements, a ballot may not be issued to the individual and the individual may not cast a ballot” via mail. Though it may seem like a reasonable limitation to place on mail-in voting, it does burden a certain portion of the population. Young people, whose participation has surged in Montana over the past few years, object to stringent absentee requirements that target both their age and transient nature. For example, young Montanans who will be 18 and eligible to vote on Election Day, but will not reach that age before the extremely early deadline to request a mail-in ballot, are prevented from voting if they can’t return to their district on Election Day. Additionally, residency requirements require 30 days of presence in a new location before an absentee ballot may be requested. With large portions of teens in Montana moving both away from home and out of state in the fall, there is little room for error in requesting an absentee ballot, and sometimes the request is impossible.

[Read more…] about Montana: Changes To Voting Laws In Wake of 2020 Election

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