State of Elections

William & Mary Law School | Election Law Society

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.

A Case Study in Independent Redistricting – Washington State

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By Megan Bodenhamer

Any native of Washington State knows, first-hand, the degree of political polarization that exists in the state. The western part of Washington State encompasses the most heavily populated and liberal part of the state, including Seattle and the rest of King County. In contrast, the eastern part of the state is much more conservative and rural. This split makes politics in the state especially contentious and divisive. Interestingly, as a result of this stark geographical and cultural divide, the eastern part of Washington State has threatened to secede and create its own state quite frequently throughout history. 

This split political climate forms the background for all legal and political issues in the state. This is especially true for election laws and redistricting. In most states, politicians or legislatures draw the maps for state elections. In other words, the politicians whose job security depends on elections are the same people who draw the districts that determine the outcome of elections. In places like Washington, where political opinions are deeply entrenched and divisive, this can be problematic. In thirty-four states, districting for state elections is done predominately by state legislatures. Washington is just one of fourteen states that has an independent districting commission. The remaining two states have a hybrid model. 

The body that draws maps in Washington is called the Washington State Redistricting Commission, which is a board made up of five commissioners. Four of the commissioners are selected by the majority and minority leaders in each chamber of the state legislature. These four commissioners, then, vote on a fifth commissioner who serves as the non-voting chair. The non-voting chair’s role is to establish areas of common ground and facilitate compromise. This results in a bi-partisan commission with two seats for the Democratic Party and two seats for the Republican Party, who decide the fifth, non-partisan chair together. This makes Washington unique because it is only one of nine states with a non-politician districting commission. This means that commissioners may not have been elected as a district, county, or state party officer, nor may they have been another type of elected official within two years of appointment to the commission. Additionally, commissioners may not have been a registered lobbyist within one year of appointment. There are also requirements during a commissioner’s appointment. Commissioners may not campaign for elected office or participate in or donate to any political campaign for state or federal elected office. For two years following their service, commissioners may not hold or campaign for congressional or state legislative office. 

In a staunchly divided state like Washington, it would seem beneficial to have a non-politician and bipartisan districting commission. However, it is questionable whether these requirements actually prevent political gamesmanship and gerrymandering. First, the prohibition on politicians is not a difficult hurdle to overcome. Two years without running for public office hardly prevents someone with political motivations or budding political ambitions from being selected to the commission. Further, because commissioners are selected by state legislatures, they are likely colleagues or affiliates of politicians, not far-removed non-partisan individuals as is required. Further, because the majority and minority leaders each get to pick a representative, it is likely they will pick a commissioner that represents their political ideations. Being selected by a group of politicians is not altogether different from the leaders appointing a politician to the commission.

The Washington State Redistricting Commission has not been without its flaws. The Commission was unable to come to a consensus and meet its November 15, 2021, deadline to draw district maps. Instead, the Washington State Supreme Court was tasked with drawing the state’s new legislative maps. In March of this year, the chair of the commission, Sara Augustine, resigned from her position. Her decision came after the commission failed to intervene in a lawsuit regarding its own maps. She claims that in failing to defend the maps, state authorities have undermined the compromise that went into creating maps that protect the public interest. Moreover, the Commission is under suspicion for conducting their deliberations of map drawing in private, in violation of a Washington law called the Open Public Meetings Act. This act requires all meetings of governing bodies of public agencies be open to the public. Clearly, the realities of bipartisan map drawing are not as idyllic as they may seem on paper.

While the basis of a non-politician and bipartisan districting commission sounds like a modern solution to districting issues, Washington State is an important case study testing out this theory. While the Commission may not have been wholly successful, it will be interesting to see how Washington approaches its next redistricting. If Washington, with its intense political polarization, can find a way to manage bi-partisan and apolitical districting, perhaps the rest of the nation could follow its lead. 

A Bipartisan Effort to Change Election Law in South Carolina

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By Susanna Clark

This past May, the governor of South Carolina signed a new bill into law that made changes to early voting, both in-person and absentee, and election crimes. The bill was a compromise between Republicans and Democrats. After some back and forth between the House and Senate and the two parties, the bill passed unanimously. It should be noted that both the South Carolina House and Senate are controlled by Republicans by a significant margin, 80-43 and 30-16, respectively, so moderate Republicans may have been standing with Democrats in enacting a less restrictive law—effectively forcing a bipartisan effort. Either way, when compared to other Republican-controlled states, this law appears to be much less restrictive. 

Lawmakers have stated that the goal of the bill was to increase election integrity in the state. House Speaker Jay Lucas said the bill would “make it easier to vote and harder to cheat in South Carolina.” The bill was signed into law less than a month before the primary election on June 14, and due to the new early-voting provisions, voters were able to cast their ballots just two weeks after the bill passed. It is unclear whether this created confusion for voters or election officials, since the bill was passed so close to an election; the lack of news reports related to voter confusion caused by the bill suggest that it was not likely an issue. Confusion can likely be avoided by making the new provisions widely available to the public, and ensuring that election officials are properly briefed on the new legislation. 

One of the major changes is that an in-person two-week early voting period replaces an in-person absentee voting, which is now done by mail. This means that there is an in-person voting period prior to Election Day and absentee voting by mail for those who cannot vote during the available time. This would operate like Election Day voting–voters can only vote in their respective counties and must bring a form of photo identification This ID requirement dates back to 2013. The hours and locations differ slightly, based on whether it is for a general, primary, or runoff election. Absentee voting is still available, but it is now done through the mail. Requested ballots will be received by mail, but completed ballots can be dropped off in-person to a county election office or mailed in. Voters must meet at least one of the requirements listed in order to receive an absentee ballot and must request an absentee ballot. They are not automatically sent to voters who meet one of the requirements unless they are active military personnel, are disabled, or are over 65. Voters also must be absent from their residence for the entire 12-day early voting period in order to obtain an absentee ballot. The bill also bans ballot drop boxes, which had been proposed in 2020 as a response to the pandemic, but never implemented.

The early voting measures intend to make it easier to vote, but there is also a significant provision intended to enhance election integrity. The bill effectively increases five election law violations to felonies. Punishments include a fine of up to $5,000 and up to five years in prison, which are increased from the punishments before this new law. Some of these violations include fraudulently voting, aiding in fraudulent voting, and requesting or returning more than five absentee ballots in addition to your own. While those convicted of a misdemeanor cannot vote while incarcerated, this measure is significant because those convicted of felonies in South Carolina cannot vote while incarcerated, on probation, or on parole. These punishments do not necessarily make it more difficult to cheat, but they likely deter people from cheating and effectively decrease rates of fraud. Based on an assessment done by Bloomberg News, which takes into account the new law, South Carolina does not score particularly well in the “ease of voting” category, but it does score well in the “ballot security” category, which is the major goal of the bill. 

Overall, South Carolina’s new law does not appear overly restrictive, but it definitely is part of a recent trend by states to amend their voting laws in response to the 2020 election, whether by making voting easier, or more difficult, usually depending on which political party is in control. So far, there have not been any legal challenges to the new law, but there has been criticism that it unnecessarily restricts access to voting. 

Delegation and Deprivation: The Struggle Over Judicial Reallocation in Alabama

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By Devin Carter

A fight for racial justice has erupted in Alabama. In July 2022 the American Civil Liberties Union of Alabama (ACLU-AL), alongside the Southern Poverty Law Center (SPLC), filed a lawsuit on behalf of Tiara Hudson, challenging the constitutionality of a decision by the Alabama Judicial Resources Allocation Commission (JRAC) to move a judgeship from the racially diverse Jefferson County to the majority-white Madison County. The JRAC’s vote to move the judgeship happened on the heels of Tiara Hudson’s victory in the Democratic primary election for the office. With no opponent in the general election, Hudson was slated to succeed Judge Clyde Jones to the bench. After Hudson’s primary victory, but before the general election, Judge Jones announced his immediate retirement, creating a vacancy in the seat that Hudson hoped to fill. But rather than fill the vacancy in Jefferson County, the JRAC decided to exercise powers delegated to it by the Alabama legislature to relocate the judgeship to Madison County, thus depriving Hudson of a judgeship and the people of Jefferson County of a judgeship position. 

The JRAC’s vote to move the judgeship was split along racial lines, with white voters voting for the relocation and Black voters in opposition. Once the decision was made public, it was met with backlash, as members of the public expressed frustration that a county with a substantial Black population would lose a valuable resource to a majority-white county. The decision also received biting criticism from voting rights advocates, who similarly decried the relocation for depriving the citizens of Jefferson County of fair representation in the judiciary. Hudson released a statement declaring that the rights of people of color to serve their communities must be protected and explained that the sorts of barriers that have been erected to prevent her, and others, from doing so must be eliminated. 

Hudson’s words stretch beyond the facts of her own dispute and are applicable to much of the state’s historical voter suppression tactics: the now-unconstitutional Jim Crow-era literacy tests and poll taxes, as well as current controversies such as the state’s voter ID requirement, felony disenfranchisement, and a lack of early voting. These laws have had a disproportionately negative impact on the ability of minority voters to have their political voices heard. This controversy surrounding the transfer of the judgeship could be viewed as a continuation of efforts to dilute the political power of minority voters. Bolstering this view is the fact that, despite the JRAC having possessed the authority to reallocate judgeships since its inception in 2017, it had not exercised this power until now, which stripped a racially mixed jurisdiction of a judgeship shortly before a Black woman was due to fill the seat. In response to these allegations, the JRAC has argued that Jefferson County had an excess of judges, and that the transfer would provide Madison County with a judgeship that it needed. 

Hudson’s complaint argued that the power to reallocate vacant judgeships was an unconstitutional delegation of authority from Alabama’s legislature to the commission, and that the governor’s subsequent appointment of a new judge in Madison County was, therefore, unconstitutional. Despite Hudson’s efforts, as well as those of the ACLU-AL and SPLC, an Alabama judge dismissed the case in August 2022. The judge justified the dismissal by claiming that Hudson lacked the standing to sue; the judge further determined that the Alabama legislature had properly delegated its authority when it gave the JRAC the power to reallocate vacant judgeships. Hudson, the ACLU-AL, and SLPC have filed a notice of appeal. ACLU-AL’s legal director, Tish Gotell Faulks, explained that she was seeking clarification regarding the way that judicial resources would be distributed across each of the state’s jurisdictions so that every person in Alabama had access to judges and other legal resources.

As Pandemic Voting Laws Lapse, Connecticut Broadens Absentee Voting Laws – But Not Too Much

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By Jana Jedrych

When urgency about the spread of Covid-19 began to pick up speed in the early months of 2020, many states scrambled to determine what effect the pandemic would have on voter turnout, which is depressingly low in America at the best of times. Many states made temporary changes to their election laws to allow a drastic expansion in the number of absentee voters in 2020 and 2021, including Connecticut, where—despite usually having some of the most restrictive absentee voting laws—all registered voters had the option to vote by absentee ballot.

But, as with many Covid-caused restrictions that loosened or lifted in 2022, Connecticut’s absentee voting qualifications are returning to a state more similar to their pre-2020 requirements, with some changes indicative of the ongoing considerations of Covid-19. Both restrictions and allowances have been made to absentee voters in Connecticut—possible excuses for absentee voting have been expanded, but provisions that would ensure more effective exercise of absentee voting power have been rejected. 

Governor Ned Lamont signed CT H 5262 on April 8th, 2022. The bill expands the excuses a voter can employ to be eligible for absentee voting in a way that reflects the current state of election law post-2020’s pandemic voting challenges. Previously, absentee voting because of sickness was only allowed if the voter applying for the absentee designation was ill. This bill allows for absentee voting in the event of the broader definition of “sickness,” which includes taking care of other sick individuals. Exposure to a disease, even if the individual is not currently sick, also qualifies as “sickness” under this bill. Similarly, the bill also expands the ability of voters to qualify as absentee on the grounds of a disability. Before, only those who personally had a disability were able to vote absentee on the grounds of disability, but in this bill the definition of “disability” as an excuse has been expanded to include being the caregiver of a disabled person, frailty from a medical condition, and limited mobility from old age. 

However, CT H 5262 and another recently-passed Connecticut election law bill, CT S 470, included components that limited the eligibility of Connecticut voters to vote absentee. CT H 5262 expands the requirement for unavailability on Election Day; instead of only being unavailable during voting hours on Election Day, voters must now be unavailable for the entirety of Election Day. 

CT S 470 was signed into effect on May 10th, 2022 and allowed for the disclosure of unique voter identification numbers, removing them from the list of confidential voter registration information that cannot be disclosed. But the bill previously contained provisions intended to ensure the efficacy of absentee voters’ ballots, and those provisions were amended out of the version of the bill signed by the governor. In an earlier form, the bill outlined procedures that would require local election committees to notify a voter if his absentee ballot had been rejected and educate him on his right to vote in person. The current law does not speak to whether or not a voter has to be notified if his absentee ballot is rejected. The earlier version of the bill also included a provision requiring local election officials to count ballots throughout Election Day instead of at a single time on Election Day, which is what the current law provides for. 

Connecticut’s current changes to the requirements for absentee ballots are an interesting look at how election law might be irrevocably changed by the pandemic. In many ways, it’s back to business as usual—the state is not eager to discontinue being one of 17 states that requires an excuse to vote absentee. But broadened definitions of sickness and disability in some ways reflect how attitudes towards sickness have changed as a result of Covid-19. In any case, it could be argued that the usefulness of allowing individuals to vote absentee is dampened when the state refuses to put practices in place to ensure that all absentee voters’ votes count. Not requiring that voters be informed when their absentee ballot is rejected and not requiring that absentee ballots be counted the whole of Election Day means that there are voters who still will not have their voices heard, despite loosened restrictions on who is able to vote absentee.