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A Tale of Two Cities: The Recall Efforts of the San Francisco and Los Angeles District Attorneys

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By Caleb McClain

Earlier in the year, I wrote an article for this blog on the recall election laws of my home state of California. I was inspired to write the article by to the persistent efforts to recall my county’s District Attorney, George Gascón, and the recent special election that tried to recall the Governor, Gavin Newsom. Shortly after I finished writing the article, there was a successful recall of the San Francisco District Attorney Chesa Boudin and a failed attempt to recall Gascón. Considering these events, I wish to take a closer look at both elections and see if any of the critiques of the California recall system apply.

As I have previously given a history and overview of recall election, I’ll give only a brief summary. Recall elections emerged out of the progressive movement as way to give power back to the people to remove corrupt officials but in practice have had a mixed effect. California has hosted over 11 recall elections with the most famous being the successful recall of Grey Davis in 2003 and the failed attempt to recall Newsome in 2021. The election occurs when a recall petition is circulated in the required jurisdiction to gain signatures. If the required number is met, it triggers an election to decide if the official will be recalled and, depending on the office, who will replace them. For county-wide elections the number of required signatures is determined by a percentage of the number of registered voters in that county with bigger counties needing a smaller percentage.

First to be examined is the successful campaign against SFDA Boudin. For a successful county-wide recall in San Francisco county, a petitioner must collect over 50,000 valid signatures from among San Francisco’s 496,000 registered voters. Supporters of the recall managed to gather more than 80,000 valid signatures ensuring it would go to a vote. The vote ultimately resulted in 122, 000 voting for the recall compared to 100,00 voting to keep Boudin, successfully recalling the DA by more than 20,000 votes and making SF Mayor London Breed pick the next DA.

Next, we examine the failed campaign to recall DA Gascón. For a successful county-wide recall in Los Angeles County a petitioner must collect over 570,000 valid signatures from the county’s 5.6 million registered voters. Supporters of the recall fell short by over 50,000 votes when they only managed to get 520,000 valid signatures leaving Gascón safe until he is up for reelection in 2024. This was the second failed attempt to recall Gascón.

In my previous article I pointed out several issues with the way California’s recall elections were set-up particularly at the state level. Now these two recall attempts, despite their different outcomes, offer useful examples of these flaws at the local level. The first and greatest among these is the low bar of signatures needed to trigger a recall election with only 10% needed to trigger a recall election in a county with over 100,000 registered voters. Currently California has over 30 counties with registered voter populations over 100,000 out of 52 total counties. Looking at San Francisco in particular, it is not a great challenge to round up 50,000 voters out of just under 500,000 total. As California Secretary of State Shirley Webber puts it “There’s always 10 to 15% who do not like somebody.”

A second, and broader, critique is the overall effectiveness of recall elections. At the state level, I pointed out how recalling governors was due less to perceived corruption than to external forces they had little control over or internal partisan squabbling. This same issue still holds true at the local level, with the San Francisco and Los Angeles recalls both being marked by similar forces despite their different outcomes. Both cities were on the front lines of the progressive prosecutor movement in California, with Gascón serving as Boudin’s predecessor in SF. Further, both recall attempts emerged as a reaction to a national spike in crime amplified by a series of viral smash and grab robberies. However, the crime spike occurred across the nation during the pandemic regardless of the ‘tough’ or ‘soft’ policies of the county District Attorney and holding a local official solely responsible for a national problem severely undercuts that rationale for a recall.      These issues and others with the recall process have been noted by activists and politicians alike and movement is underway to bring a suite of reforms before the voters and the state legislature, which a classmate has written at length about.

Changes in Tennessee: New Post-Election Audit Procedures

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By Marc Sloan

Tennessee has enacted a new law revamping its current post-election audit requirements and adding new ones to the list. The new legislation institutes a framework for the state to double check elections run by Tennessee’s 95 counties on a broader scale and in a more comprehensive way through a slate of both consistent and random audits. According to the Brennan Center, post-election audits can help ensure votes are tallied correctly and restore public trust in elections. The bill was passed unanimously in both chambers with bipartisan support, but the Voting Rights Lab says the law will restrict voter access and interferes with election administration through taking away power from local officials and giving it to the state.

Enacted into law in summer of 2022, Tennessee SB2675/HB2585 changes post-election procedures to require a new, additional audit process for select county election commissions. The commissions subject to these new audits will be selected randomly by the secretary of state, who must choose three to audit after each August election and six to audit after each November election. These new audits will begin with the first election in 2024. In the meantime, the law includes a provision requiring Williamson County, home to the Senate sponsor of the legislation, to undergo an audit following each election in 2022, in an effort to test the audit process. The original bill called this a “pilot program,” but this language was amended out.

Current law requires that county commissions who use precinct-based optical scanners must conduct automatic audits of the voter-verified paper ballots cast for the top race on the ballot; this new law retains that requirement, even if those election commissions are not otherwise selected for an audit. These audits must take place prior to the certification of the election. Finally, the law requires that all county election commissions not otherwise selected for an audit or required to complete one as part of the law must conduct a performance audit following the certification of each November election.

The law specifies that the secretary of state shall select the methodology for the random audits. The legislation provides for the secretary to choose from a risk limiting audit, a traditional tabulation audit, or a performance audit. According to the National Conference of State Legislatures, traditional tabulation audits are usually conducted by hand and compare the paper records with the records tabulated by the voting machines. These audits count every vote, whereas risk limiting audits involve counting a sample of votes and analyzing them using statistical methods determined to limit the risk of certifying an incorrect election outcome. A performance audit, also known as a procedural audit, designates a person or group to review the procedures followed during the election and analyze them for compliance and irregularity.

In addition to the audit requirements, the law provides that for elections in 2022 and 2024, the costs of the audits will be paid by the state. Specifically, county election commissions will be reimbursed for their actual costs, which cannot exceed $50 for the audit setup per machine and 35 cents per ballot audited. The fiscal note for the bill indicates the cost to the state to implement these new audit requirements will exceed $500,000 over the next four years. Part of this expense will be to hire a new certified public accountant to keep up with the changes in audit procedures this law requires. With the rollout of this law set for the November 2022 elections, the state and county elections commissions must prepare to comply with this new legislation.

North Dakota Considers the Private Right to Action in Redistricting Litigation

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By Jackson Cherner

The North Dakota legislature, which approved a new legislative map in November of 2021, faces pushback from Native American tribes regarding the dilution of their voting rights. In February 2022, members of the Turtle Mountain Band of Chippewa Indians and the Spirit Lake Tribe (as well as individual Native American voters) sued North Dakota’s Secretary of State, Alvin Jaeger, in the U.S. District Court of North Dakota over the state’s map. The tribes claim that the state violated Section 2 of the Voting Rights Act (“VRA”), which protects voters from discrimination on the basis of race, color, or other designation promulgated by law. In its complaint, the tribes stated that the new map “packs” members of the Turtle Mountain Band of Chippewa Indians into subdivided Senate District 9, while it “cracks” members of the Spirit Lake Tribe by placing the majority of their population in Senate District 15. As a remedy, the tribes propose creating a single district compromising a geographic majority of their communities. 

Secretary of State Jaeger filed a memorandum in April of 2021, which challenges multiple responses to the tribes ability to raise claims under Section 2. Jaeger questioned the validity of the tribes standing to bring the claims in front of the federal court without particularized injury and in uncertainty regarding tribe members’ status as U.S. citizens. Additionally, Jaeger questioned the tribes’ right to private action under the VRA itself. Jaeger’s memo claims that a private right to action is not recognized by federal courts. In Brnovich v. Democratic Nat’l Comm., Justice Gorsuch’s concurring opinion finds that the Supreme Court has not decided on the issue, and instead defers to the decisions of lower courts to decide the right to action under Section 2. Based on this concurrence, the state believes an order issued by the Eastern District of Arkansas in Ark. State Conf. NAACP  v. Ark. Bd. of Apportionment resolves the issue. This court found that Section 2 was silent on the right to action, and other sections of the VRA required claims to be brought by the Attorney General of the United States. This court also reflected on a string of recent Supreme Court precedent that rejected any implied right to action in challenging federal law. 

The tribes have issued their own response to Jaeger’s claims, which has been mirrored in part by the U.S. Department of Justice’s amicus brief in support of the tribes and their private right to action under Section 2. The tribes’ response recognizes an alternative solution available to plaintiffs—Section 1983 of the Civil Rights Act of 1871. This section allows individuals to seek recovery against state actors for violating federal civil rights. Since Section 2 does not explicitly or implicitly prohibit private enforcement under this federal statute, the state would bear the burden of proving an exclusionary principle. 

Additionally, both the tribes and the Justice Department recognize that binding Supreme Court precedent protects the rights of private plaintiffs under Section 2. Specifically, in Morse v. Republican Party of Virginia, the court held that a private individual has the right to raise claims without the Attorney General under Section 2 of the VRA, relying on precedent in Allen v. State Board of Elections, which authorized enforcement of private claims under other sections of the law. The Court in Morsefound that private individuals could challenge a state’s requirement for candidates to pay a registration fee under Section 10, based on Congress’s intent to effectively protect the right to vote as well as reduce the litigation burden on the Attorney General. This intent extended to Section 2, which carries an implied right to action against discriminatory activities. This implied right is also supported by an Eighth Circuit case, which binds lower courts in North Dakota. 

The parties did not receive relief in the June election and are not expected to receive relief in the upcoming November election. However, in July, the tribes won a necessary decision in the District Court when a North Dakota federal judge denied Secretary Jaeger’s motion to dismiss the suit, stating that the tribes can bring claims under Section 2 of the VRA. Chief U.S. District Judge Peter D. Welte, in his ruling, referenced the ability of private organizations, such as the NAACP, to sue on behalf of its members, and does not see any difference concerning tribes recognized by the federal government. Now, the stage is set for the court to rule on the constitutionality of North Dakota’s redistricting, and whether the tribes were deprived of their right to choose their preferred candidates. 

On the Eve of Merrill v. Milligan, a Voting Rights Act Section 2 Case to Watch in Georgia

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By Rebecca Stekol

Uncertainty clouds the future of the Voting Rights Act Section 2 due the upcoming vote dilution case before the Supreme Court in October 2022, Merrill v. Milligan. Some worry that the Supreme Court will embrace Alabama’s argument“regarding race-neutral principles in redistricting” and render Section 2 vote dilution claims much more difficult. In the meantime, however, Georgia faces its own Section 2 litigation in Rose v. Raffensperger. The docket already tells a convoluted tale. In the broader context of Georgia’s polarized election climate following the 2020 election, including the passage of the controversial Senate Bill 202 enacted in 2021, the outcome of this case has the potential to fuel more controversy or foreshadow the future of election administration in the state.

The crux of Rose v. Raffensperger is a challenge to the at-large method of electing members of Georgia’s Public Service Commission. The Commission has “exclusive power” to decide fair and reasonable rates for services under its jurisdiction,” including services stemming from the electricity, natural gas and telecommunications industries. Commissioners have been chosen by statewide election since 1906; although elected at large, Commissioners are required to reside in one of five Public Service Commission districts. In their complaint, Plaintiffs contended that “staggered terms, a majority-vote requirement, and unusually large voting districts” enhance the opportunity for discrimination against Black voters. Their main claim is that the at-large method of electing members of the PSC dilutes Black voting strength because the percentage of districts in which Black voters constitute an effective majority is less than the percentage of Georgia’s Black voting-age population. According to the plaintiffs, the results don’t lie: in Georgia’s history, there have only been two Black public service commissioners, and they were appointed by the governor to fill vacancies before being elected.

The District Court addressed what it described as a “novel question” of whether there can be vote dilution when the challenged election is held on a statewide basis. On August 5, 2022, Judge Grimberg held that “this method of election unlawfully dilutes the votes of Black citizens under Section 2 of the Voting Rights Act,” permanently enjoining Secretary Raffensperger from preparing ballots for the November 8, 2022 election that include contests for PSC Districts 2 and 3 and from administering any future elections using the statewide, at-large method. He noted that “while delaying elections … until a later date will regrettably cause disruption to the candidates currently running for those offices, the court does not find that such disruption outweighs the important VRA interests that are implicated.”

As is usually the case for contentious Voting Rights Act issues, the tale did not end there. Secretary Raffensperger moved for a stay pending appeal of the district court’s order, which the Eleventh Circuit granted on August 12. The Court heldthat the district court’s order violated Purcell v. Gonzalez and its progeny, which prohibits district courts from altering the election rules in the period close to an election. The Court concluded that the district court’s issuing of the permanent injunction about three months before the election is “sufficiently close at hand” under recent precedent articulated in League of Women Voters of Florida v. Florida Secretary of State. In addition, the Court noted that postponing the elections for Districts 2 and 3 and keeping the existing Commissioners as “holdovers” until single-member voting is implemented “fundamentally alters the nature” of the upcoming elections under RNC v. DNC. 

On August 19, the Supreme Court issued a one-paragraph order reversing the Eleventh Circuit’s judgment and vacating the stay. According to Wiley Rein’s Jeremy Broggi, three points can be drawn from the Court’s reasoning. First, the Supreme Court may agree that a Purcell defense is waivable. Secretary Raffensperger waived a Purcell-based appeal, but the Eleventh Circuit still applied it. Second, the Supreme Court declined to apply Purcell “mechanistically” like the Eleventh Circuit did when it applied Purcell because the election was three months away. Third, the Supreme Court focused on equitable considerations, indicating that Purcell is a “rule of reason reflecting concerns about the potentially disruptive consequences of judicial tinkering with election rules.” For instance, the record as it stands contains no evidence that the injunction would cause voter confusion, calling the necessity of a stay into question. Therefore, the Supreme Court directed the Eleventh Circuit to reconsider whether the stay is appropriate “subject to sound equitable discretion.” That is where the tale ends, for now. 

The reactions to the ongoing litigation have been mixed. On one hand, James Woodall, the President of the Georgia NAACP, stated that it is imperative for state regulators to “better address the racial inequity of Black households paying a significantly higher percentage of their income on utilities.” Having more Black-supported Commissioners would change “the way deliberations are had.” However, the state’s attorney Bryan Tyson has stated that socioeconomic factors such as household income are more significant factors in how spending decisions are made than race, and that “political partisanship better explains the pattern of voting dilution” than race does. Moreover, some believe that putting two PSC elections in limbo creates uncertainty and frustration for candidates and voters alike; such a prolonged legal affair might even discourage voter turnout, writes local journalist Marc Hyden.

Of course, at the backdrop to this twisted tale of litigation is how the potential gutting of Section 2 after Merrill v. Milligan will shape claims like these. For now, we are at a cliffhanger as we await more Supreme Court decisions.

The Legal Necessity of Machines for Voting by Mail

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By Anthony Scarpiniti

In the age of Covid-19, social distancing, and staying at home, the “norms” of society are no longer normal. Because of the recent November election, many states adjusted or expanded their absentee and mail-in voting procedures. According to a Pew Research Center survey, approximately two-thirds of Americans support the ability to vote absentee or early without a specific reason. Even President Donald J. Trump and First Lady Melania Trump requested mail-in ballots for the Florida Republican primary election in August.

While many Americans support absentee and mail-in voting in theory, in order for them to work in practice, the United States Postal Service (USPS) had to be prepared for the large influx of ballots. During the 2019 holiday season, the USPS sorted and delivered approximately “2.5 billion pieces of First-Class Mail,” and this was just in one week. This breaks down to about 500 million letters per day. The Census Bureau estimated that the voting age population in the United States was about 245.5 million citizens in 2016, and only about 157.6 million of them were registered to vote. Between the holiday season and a hypothetical election held completely via the mail, it is a fair assumption that the USPS is much busier during the holiday season.

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