Reforming the California recall-replacement process

What a relief. It turned out like the fundamentals of this state said it should all along. But the risk was high. Maybe those polls that showed the recall ahead or close were just rogues. But a process that lets a motivated minority potentially replace an effective but unexciting incumbent with someone elected by a small percentage of the vote is deeply undemocratic. 

It needs to be reformed before an extremist minority puts us through such an attempted power grab again, and maybe pulls it off. So this planting is all about brainstorming for some possible improvements to the process.

As I have noted before, I oppose recalls in principle, at least against the elected chief executive. I explained why in the first in my series on this recall. But for this discussion, I will assume we are stuck with a recall provision, and only focus on how it could be improved. I also am limiting myself to recalls of elected governors (or by extension, presidents), and not to all the other offices that are, or might be, subject to recall.

Minimal changes

The California process of initiating a recall is probably the most favorable to an incumbent’s opponents. Without undermining the principle of allowing the people to recall a governor, there are numerous ways the hurdle could be made higher. FiveThirtyEight has already done a helpful rundown of how California’s provisions compare to those of other US states.

Possible reforms, drawn from experiences of other states, include raising the petition signature requirement (currently just 12% of the number of voters who participated in the previous gubernatorial election) and shortening the time during which petitions can circulate (currently 160 days).

While reforms of this sort are probably a good idea, they are very minimal. There are more fundamental problems with the process, once qualified. These problems do not go away unless the qualification becomes so onerous that effectively a recall election is never triggered. And while some tightening of the criteria may now be likely, it is unlikely the conditions will be greatly restricted.

Somewhat more significant changes for recall

Somewhat more significant options including requiring a claim of malfeasance, rather than we just do not like you, as a basis for petitioning for a recall, or requiring a supermajority to vote in favor of the recall. I do not think the first of these ideas is easily enforceable. (What are the criteria, and who decides if they have been met and so an election is triggered?)

The supermajority idea is attractive. Obviously, a supermajority privileges the status quo, and that is why I normally do not approve of such rules other than perhaps for constitutional changes. Yet in a system based on fixed terms, privileging the status quo is not such a bad idea–the officeholder serves his or her original term unless a strict condition for termination has been met. Nonetheless, I would be concerned about the continued legitimacy and effectiveness of a governor whom a majority of voters–but less than three fifths or two thirds or whatever–had voted to oust.

One could also set a rule that says the recall has not succeeded unless it obtains a majority that is also a greater number of voters than originally voted for the governor in the last election. This is de-facto a supermajority requirement, but it sets the threshold according to the existing electoral base of the incumbent instead of at a fixed level. I retains the same problems I noted with a specific supermajority threshold, but I do rather like the idea nonetheless. See Frozen Garlic for a good statement of the general principle “that recalling an elected official should be significantly harder than electing that same official”; the post has some specific suggestions for implementing that principle. That blog is about elections in Taiwan, where there are recalls and there is a turnout requirement for it to be valid (but it is low, at 25%).

Reforms to the replacement election

Here is where the most important changes could be made. Currently, all state officeholders in California are elected by majority in a “top two” runoff election–unless they are replacing a recalled officeholder. Per Section 5(a) of the California Constitution, “The candidates who are the top two vote-getters at a voter-nominated primary election for a congressional or state elective office shall, regardless of party preference, compete in the ensuing general election.” However, Section 15(c), regarding recalls, says “If the majority vote on the question is to recall, the officer is removed and, if there is a candidate, the candidate who receives a plurality is the successor. The officer may not be a candidate…”

An obvious solution is to clean up this contradiction. Why should a replacement be eligible to be elected by only a plurality when the officeholder being replaced was elected by a majority? This violates the previously articulated principle by making it easier to replace than to initially elect. Among the strange things about recall-replacement elections in this state is that there is no primary. Of course, readers of this site know that we do not have primaries at all anymore (other than for presidential nominating delegates). What Section 5(a) calls a “primary” is actually not a primary; it is just the first round of a two-round majority election in which party affiliation is not a criterion regarding who advances to the runoff (as quoted previously, “regardless of party preference”). In any case, how we label this process is not the point–important though it is!. The point is that there is a prior qualifying round for general elections, but not for the special election that chooses a replacement. This should be corrected.

Any correction should also resolve the current undemocratic “trainwreck” criterion that a replacement can win fewer votes than the recalled officer had not merely when previously elected but also in the same election. If a majority is required to elect the replacement, this problem is mostly solved. But how to do it? Here are a few possibilities.

(1) Replicate the current general-election process, that is, have a preliminary round (“primary”) and then a top-two runoff, in the event a majority has voted to recall the incumbent.

A key problem with this is it could result in having three special election dates to complete the process: the recall, then if a majority votes for it, a qualifying election, and then if no candidate wins a majority, a runoff. Such a proposal is not likely to fly.

(2) An alternative would be to hold the qualifying round concurrent with the recall question. If the recall passes by majority, but no single replacement candidate wins a majority, then there is a top-two runoff a few weeks later. This would turn a potentially three-round process into a maximum of two, and might still allow it to be over in one round.

If this option were chosen, I would explicitly permit the recalled officer to run in the qualifying round on the same day. If he or she is one of the top two, then the recalled official proceeds to the runoff against a single challenger. If a majority votes to retain the previously recalled governor, so be it. A majority has decided it did not see a single replacement who was better than the incumbent after all. (This sub-option that I suggest is not necessary for the general principle of two rounds to be adopted.)

(3) Yet another possibility is to dispense with the recall question altogether. A successfully qualified recall petition simply triggers a special election in which the incumbent may stand alongside whatever replacement candidates have qualified. The incumbent survives unless a single replacement candidate earns a majority of votes cast. It is all over in one round, and on one question. It would have the advantage of forcing coordination among the opponents, because they need a majority and get only one chance at it.

A potential flaw is the incumbent could survive without even a plurality if coordination fails and there are many candidates, which raises those legitimacy questions again. But the goal is to make it hard to replace, not hard to continue. A twist would be to say there is a runoff if and only if the incumbent finishes second or worse to a challenger who has fallen short of a majority. (Such a runoff probably should include the incumbent even if he or she finished lower than second, but I don’t feel strongly about that particular sub-option.)

By now, some readers will be impatient that I have not mentioned the ranked-choice option. Okay, here you go.

(4) Using ranked-choice voting (RCV) is a simple solution that could be done in one round of voting either with, or without, two questions. The smallest change would be to have two separate questions like we currently do, but the replacement is by ranked-choice voting (alternative vote). A better–I think–option would be the single question: rank as many of the following candidates, including the incumbent, as you wish.

I do not favor these RCV options because we have seen we can have dozens of candidates enter. Asking voters to rank a huge field, where at least the major out-party may have several candidates, is asking a lot of the voters. Moreover, with many candidates, many voters will not rank them all, and the chances are high that the winner will still have only a plurality. This is a general problem with RCV in an effectively non-partisan context (i.e. when multiple parties have not each pre-selected a single candidate). I do not favor this, although I recognize it as an improvement over the status quo. Almost anything would be.

Abolish the replacement election

We have a Lieutenant Governor. The main point of such an office is to replace the incumbent Governor if the latter is unable to discharge his or her duties. If a recall passes, have the Lt.Gov. take over and there is no need to have a special replacement election. This makes a great deal of sense, and I’d be happy with it. Voters might not be, and so its chance of being enacted as a constitutional reform in California is likely not high.

Think big

As I explained earlier (see first linked post), one of my objections to gubernatorial (or presidential) recall is that it targets one officeholder. If we are talking impeachment for malfeasance, that’s fine. But in reality, a recall is a just another political process–even more than impeachment, which is also political. If the objection of the potential majority in favor of recall is discontent with policy, the problem is clearly not only with one person. So recall them all! Have a recall process that simply initiates an early election for the entire legislature as well as the governor. Sort of like an early dissolution in a parliamentary system. Go back to the people and get new policymakers, or if the voters prefer, reelect them all.

I do not actually favor this. But I mention to make a point–recalls are about attempting to reset the terms of delegation from voters to their agents in government. So it sensibly should not be used to target a single individual (again, unless there is some process specifically targeting only a corrupt individual officeholder).

So there you have it. These are the ideas I have come up. What are yours? What do you think of these? We desperately need to change this process before a minority power grab succeeds in the future, but how?

15 thoughts on “Reforming the California recall-replacement process

  1. There’s no really good way to structure a replacement election, only bad ways and worse ways. In addition, using the same method as is used to replace an official who dies, is incapacitated, or resigns has a major advantage. It reduces the incentive the out-of-office party has to mount a recall drive for the purpose of trying to sneak into office without majority support. It therefore helps limit recall efforts to situations in which the office holder is targeted personally rather than as a representative of the other party and its policies. As I said in the previous thread, it makes recall more like impeachment by the people.

    Prof. Shugart might be right that replacement according to a line of succession would be hard to sell to voters, who would have to approve such an amendment to the state constitution. If so, this would be the first time I supported a proposal with no (current) chance of passage.

  2. You could use RCV, but with the proviso that a non-incumbent is elected only if they receive, at the last stage of the count when there are only 2 candidates, a higher proportion of the vote than the incumbent received at the last election.

    • Okay that needs to explained better. In a regular RCV count with M=1 the quota is 1 more than half of all valid votes and you continue excluding the trailing candidate and transferring their preferences until a candidate reaches the quota. Ties are resolved by countbacks. If no candidate makes quota, you continue excluding and transferring until a candidate has more than half of the continuing preferences, or until there are only 2 candidates, whichever first happens.

      My proposal is that that you do a regular count, but a non-incumbent’s final vote must be greater than the proportion of votes received by the incumbent at the last election, otherwise the incumbent is re-elected.

      You would have to significantly increase the requirements for a candidate to run to address MSS’ concern with long ballots.

  3. Wisconsin, which is I think the most recent state to conduct a recall election for Governor besides California, has a recall mechanism with a primary and general election but without a replacement question.

    • Henry, do you mean without a recall question? Based on the California model, I’d refer to the ballot of candidates for the office “the replacement question.”

      I do not know the Wisconsin procedure, but I understand your comment to be that there is not a simple YES/NO on whether voters want to remove the incumbent. Or am I misunderstanding?

      • Yes, sorry, that’s what I mean. There’s no binary question on removing the incumbent

      • If the recallee were able to be a candidate in the replacement election, which almost everyone here seems to endorse, the number of candidates would almost certainly decline a lot. If Newsom had been on the ballot in Question 2 it would not serve the interest of the pro-recall forces to have dozens of candidates splitting their votes against a single incumbent candidate.

      • Alan, exactly. That is the spirit behind my recommendation #3. Make it especially costly to the recall proponents if they do not coordinate. Under current rules, there is very little cost: it just becomes a de-facto primary for the major opposition party.

        Henry: Thank you for the clarification.

  4. Isn’t there a way to limit how many candidates can run in the recall? There should be no more than 15 candidates at most running to replace an incumbent Governor. If Ranked Choice Voting for the 2nd part, no more than 7 candidates should run, but then should voters be required to rank all candidates, just 1, or 1, 2, 3 for a vote to be valid. Voters could/should required to vote for both ballots in order to make the ballot valid, would that make it worse? It seems strange the 2nd part could be left blank. The blank candidate gets more votes than the so called replacement candidate. If the blank candidate is a plurality, the governor should not be recalled even if a majority says yes, because the voters don’t favor a replacement candidate. I don’t know if this works, but these are my working thoughts to throw out.

    I think that individual recalls for state assembly members, and state senators should be repealed and replaced with recalling the whole state assembly and senate especially if a PR system were ever embraced in California.

    • You could certainly limit the number of replacement candidates in an election: simply require them to have a minimum number of signatures (say, 5% of the electorate) to quality for the ballot.

      Heck, it might be a better idea to replace recall with a Constructive Recall: the recall vote can only be initiated if a sufficient number of people sign a petition urging that the governor be recalled and replaced with a specific individual.

      • Rob and Christopher: I think it would be wise to make it harder to qualify for the replacement ballot. I also suspect this will be more controversial and alleged to be “undemocratic”. So, like abolishing the replacement election altogether (having the Lt.Gov. take over), I suspect it’s a non-starter. Or, rather, some limitations might fly, but not enough to fundamentally resolve the problem of “too many” candidates.

    • I agree completely. All legislative bodies should be subject to recall as a body, not as individual members.

  5. According to The Guardian

    “State senator Josh Newman, who was recalled in 2018 before regaining his seat two years later, said he will propose two constitutional amendments: one to raise the number of required signatures and another to have the lieutenant governor finish the governor’s term if a recall succeeds.

    “Berman and state senator Steven Glazer, who head the elections panels in their respective chambers, promised bipartisan hearings in the coming months, with the goal of proposing constitutional changes after lawmakers reconvene in January. Changes to the recall law must be approved by voters.”

    Somebody thinks that replacement by the lieutenant governor can be sold to the voters. But only sort of. They plan to ask the electorate to vote separately on that from the increase in signatures. Putting both changes in the same constitutional amendment would not violate any single subject rule.

    • That is interesting. Thanks. My quick take is that he’s afraid that the provision on letting the Lt. Gov. instead of a newly elected governor take over would be a poison pill against the other provision, which I might add, fits firmly in my category of “minimal changes.”

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.