Reforming the Recall

Reforming the Recall Report #266 | February 2022 Milton Marks Commission on California State Government Organization and Economy www.lhc.ca.gov LITTLE HOOVER COMMISSION Dedicated to Promoting Economy and Efficiency in California State Pedro Nava* Government Chairman Sean Varner* The Little Hoover Commission, formally known as the Milton Marks “Little Hoover” Commission on California State Government Vice Chairman Organization and Economy, is an independent state oversight agency. Dion Aroner David Beier By statute, the Commission is a bipartisan board composed of five public members appointed by the governor, four public Asm. Tasha Boerner Horvath members appointed by the Legislature, two senators and two Cynthia Buiza assemblymembers. Asm. Phillip Chen In creating the Commission in 1962, the Legislature declared its Bill Emmerson purpose: Gil Garcetti Senator Dave Min ...to secure assistance for the Governor and itself in promoting economy, efficiency and improved services in the Senator Jim Nielsen transaction of the public business in the various departments, Cathy Schwamberger agencies and instrumentalities of the executive branch of Janna Sidley the state government, and in making the operation of all state departments, agencies and instrumentalities, and *Served on study subcommittee all expenditures of public funds, more directly responsive COMMISSION STAFF to the wishes of the people as expressed by their elected representatives... Ethan Rarick Executive Director The Commission fulfills this charge by listening to the public, Tamar Foster consulting with the experts and conferring with the wise. In the course of its investigations, the Commission typically empanels Deputy Executive Director advisory committees, conducts public hearings and visits government Krystal Beckham operations in action. Ashley Hurley Its conclusions are submitted to the Governor and the Legislature Rachel Mattioli for their consideration. Recommendations often take the form of Sherry McAlister legislation, which the Commission supports through the legislative Tristan Stein process. Contacting the Commission All correspondence should be addressed to the Commission Office: Little Hoover Commission 925 L Street, Suite 805, Sacramento, CA 95814 (916) 445-2125 | LittleHoover@lhc.ca.gov This report is available from the Commission’s website at www.lhc.ca.gov. Table of Contents EXECUTIVE SUMMARY ......................................................................3 INTRODUCTION .................................................................................5 I. CALIFORNIA’S RECALL PROCESS IN HISTORICAL AND COMPARATIVE CONTEXT .................................................................6 Historical Background ....................................................................................7 California’s Recall in Comparative Perspective .........................................11 Frequency of Recall Elections ............................................................11 Grounds for a Recall ............................................................................11 Signature Requirements for a Recall Election .................................12 II. REFORMING THE RECALL: THE BIG ISSUES ..............................13 It Is Too Easy for a Statewide Recall to Reach the Ballot .........................14 Adjusting the Signature Threshold ...................................................14 The Malfeasance Standard: A Gateway to Litigation ......................18 A Democratic Outcome ................................................................................19 How to Reform Recall and Replacement Procedures? .............................21 The Commission’s Recommendation: A “Snap” Special Recall Election .................................................................................................21 A Runoff ................................................................................................23 A Separate Replacement Election .....................................................24 Replacement as with a Vacancy Caused by any other Means .......25 III. REFORMING THE RECALL: PROCEDURAL CHANGES ............25 Timeframe for Conducting Recall Elections ...............................................26 When Office-Holders May Be Recalled .......................................................27 Nomination of Replacement Candidates ...................................................28 IV. RECOMMENDATIONS ................................................................30 APPENDIX 1: STATE RECALL COMPARISON TABLE .....................33 APPENDIX 2: RECALL AND REPLACEMENT PROCEDURES .........38 NOTES ................................................................................................41 REFORMING THE RECALL | 1 Letter from the Chair February 8, 2022 The Honorable Gavin Newsom Governor of California The Honorable Toni Atkins The Honorable Scott Wilk Speaker pro Tempore of the Senate Senate Minority Leader and members of the Senate The Honorable Anthony Rendon The Honorable Marie Waldron Speaker of the Assembly Assembly Minority Leader and members of the Assembly DEAR GOVERNOR AND MEMBERS OF THE LEGISLATURE: Last year, the Little Hoover Commission initiated a review of California’s system for recalling state officials. The following report surveys California’s recall process in historical and comparative contexts and examines the advantages and drawbacks of different proposed recall reforms. The Commission finds that the recall is an overwhelmingly popular tool that has been a significant component of California’s electoral system for more than a century. However, the Commission also learned that fundamental flaws within current recall procedures raise concerns of potential overuse or abuse. Furthermore, the ability of a replacement candidate to win office while receiving fewer votes than the incumbent breeds the potential for an undemocratic outcome. To address these structural and procedural weaknesses, the Commission recommends that California make two key changes to its recall system. First, California should adjust the signature requirement for recalling statewide office-holders from 12 percent of the vote in the last election for the office to 10 percent of registered voters. Second, the state should replace the existing two-part recall ballot with a “snap” special election in which the official targeted for recall is placed on the ballot with all replacement candidates. The Commission also identified several smaller, procedural changes that would give elections officials more time to administer elections and provide greater clarity around the recall process. Several of the Commission’s recommended reforms require the Legislature to refer constitutional amendments to voters. The Commission believes these measures should be referred to voters separately, to empower them to choose the specific changes that they think should be adopted. The Commission respectfully submits this work and stands prepared to help you address this challenge. Sincerely, Pedro Nava, Chair Little Hoover Commission 2 | LITTLE HOOVER COMMISSION Executive Summary Letter from the Chair The attempted recall of Governor Gavin Newsom, IT IS TOO EASY FOR A STATEWIDE RECALL which produced California’s second gubernatorial TO REACH THE BALLOT recall election in less than 20 years, focused attention The recall allows voters to discharge an office-holder on the recall system and on whether that system for any reason. It is, however, a last resort that requires reform. should be reserved for exceptional circumstances. The Little Hoover Commission launched a study to Multiple gubernatorial recall elections indicate review California’s system for recalling state officials that California’s existing signature requirement for in the fall of 2021. In this report, the Commission recalling statewide office-holders (12 percent of evaluates the state’s recall process, examines the vote in the last election for the office) no longer the advantages and drawbacks of different recall provides an adequate barrier against potential reforms, and makes recommendations to strengthen abuse or overuse of the recall. It also creates an the recall system. unnecessarily unstable threshold for triggering a recall election. Setting the signature threshold for California’s Recall in Historical statewide recalls at 10 percent of registered voters and Comparative Contexts would provide greater consistency. It would also help deter overuse of the recall by increasing the number The recall came to state government in California in of signatures required to initiate a recall election. 1911 as a means to advance the Progressive agenda and as an assertion of popular sovereignty. Since A DEMOCRATIC OUTCOME the introduction of the recall, there have been 179 California’s existing recall process allows a attempts to recall state officials. Eleven of these replacement candidate to win office while receiving triggered an election and six led to an official being fewer votes than the recalled incumbent. This can removed from office. Recalls are often attempted, encourage tactical use of the recall to overturn the but they rarely qualify for the ballot. results of regular elections. Nevertheless, among the 19 states that allow for The Commission examined multiple reforms to the recall of state officials, California has had the address the potential for undemocratic outcomes: second highest number of recall elections. Moreover, ◊ A “Snap” Special Recall Election. This approach, half of all gubernatorial recall elections in American in which the official targeted for recall is placed history have taken place in California in the last 20 on the ballot with all potential replacements, years. This may be because most states have more guarantees that the candidate who receives the stringent requirements to trigger a statewide recall most votes wins the election. It also simplifies the election than California, though due to its large recall process and generally disincentivizes tactical population California requires recall proponents to use of the recall. obtain a higher absolute number of signatures than other states. ◊ A Top-Two Runoff. This ensures that the winner receives a majority of the votes. But this approach Recall Reform: The Big Issues could result in a runoff between two candidates who are unpopular with most voters. A runoff Critiques of the recall system focus around two would also add to the expense and length of the issues: the ease of qualifying a recall for the ballot recall process. and the potential for undemocratic outcomes. REFORMING THE RECALL | 3 ◊ A Separate Replacement Election. This would Recommendations eliminate the incentive for targeted officials to clear the field of co-partisans. However, by The recall is a popular tool of electoral accountability separating the recall and replacement elections, that affirms voters’ power over their elected this approach raises concerns around cost, representatives. The following reforms will administrative burden, and voter turnout. strengthen the recall system by improving administration of the recall and better balancing ◊ Replacement as with a Vacancy Caused by Other voters’ right to recall officials with protection for Means. In gubernatorial recalls in California, electoral integrity and democratic principles: this would mean automatic succession by the Lieutenant Governor. This approach could Recommendation 1: The Legislature should refer a impact the ability of lieutenant governors to work constitutional amendment to the voters in November effectively with governors and could encourage 2022 raising the signature requirement for triggering tactical use of the recall if the governor and a recall election involving a statewide officer to 10 lieutenant governor are of different parties. It percent of the number of registered voters. would also require special elections to replace recalled legislators, extending the timeframe of Recommendation 2: The Legislature should refer the recall process and posing issues relating to Senate Constitutional Amendment 3 to the voters in voter turnout. November 2022. This proposed amendment would The Commission concludes that the snap recall replace the existing recall process with a “snap” recall election best protects the recall against undemocratic election. outcomes, since it ensures that an official is recalled Recommendation 3: The Legislature should refer a only if voters prefer one of the replacement constitutional amendment to the voters in November candidates over that officer. 2022, extending the timeframe for conducting recall Procedural Changes elections to no less than 88 days and no more than 125 days. The Commission also finds that procedural aspects of the recall need revision: Recommendation 4: The Legislature should refer a constitutional amendment to the voters to prohibit ◊ Timeframe for Conducting Recall Elections. The the initiation of recall proceedings against state current timeframe to hold a recall election office-holders during the first 90 days and the last six does not reflect the administrative realities of months of their term of office. contemporary elections and puts enormous pressure on county elections officials. Recommendation 5: The Legislature should refer constitutional amendments relating to recall reform ◊ When Office-Holders May Be Recalled. California to the voters as separate propositions. does not limit recall proceedings at the start or end of an office-holder’s term, creating the Recommendation 6: The Legislature should clarify potential for continuous recall attempts. the nomination standard for recall replacement ◊ Nomination of Replacement Candidates. Existing candidates. procedures for nominating replacement candidates lack statutory clarity and set a low bar for candidates to enter the replacement election. 4 | LITTLE HOOVER COMMISSION Introduction In 2021, Californians went to the polls to vote on officials, leading scholars, public opinion experts, whether to recall Governor Gavin Newsom from and others. In addition, the Commission heard from office and who, if he were recalled, should replace more than 150 members of the public, who provided him. The attempted recall of Governor Newsom, their comments and perspective on the recall. together with the fact that two California governors The Commission studied the history of the recall have been subject to recall elections in less than in California, examined how other states organize twenty years, brought attention to the structure of their systems for recalling state office-holders, and California’s recall system and prompted examinations evaluated the advantages and drawbacks of different of whether reform is needed. approaches to the recall. The Commission also considered both the substantive value of potential Critics of the existing system, for example, have reforms and their political viability—an important argued that it is too easy to place a recall on the consideration since any change to the constitutional ballot, either because they believe California’s provisions of the system must be submitted to the signature threshold to be too low, or because they voters. object to the lack of any specified precondition for recalls, or both. Critics have also contended that the The Commission considered arguments that the current system can betray the concept of democratic recall should be abolished, that the process of rule, since a recalled office holder could be replaced putting a recall on the ballot should be made by someone who received far fewer votes. Some more difficult, or that the system of selecting the scholars and other commentators have called replacement for a recalled official should be changed. for a reexamination or reform of the system. The Fundamentally, we conclude that the recall system Legislature held hearings on the recall system in fall should be retained, both because it is substantively 2021. valuable—voters should be able to fire an elected Recall proponents have responded by arguing that official mid-term—and because it is overwhelmingly recalls are an important and successful example popular with voters. of popular democracy. Some have asserted that We do, however, believe that substantial changes the recall provides a vital mechanism of check and are needed in California’s recall process. We find that balance in California government.1 Former Secretary the current procedure for recalling and replacing of State Bill Jones advised, “You have to have some office-holders is fundamentally flawed. It sows type of an alternative, some type of a process the seeds of undemocratic outcomes, allowing a by which the voters can argue against too much replacement candidate to succeed to office while overreach by the executive branch…in the case of receiving fewer votes than a recalled incumbent. We this past year, I think that is what you saw.”2 are also concerned that the recall is subject to abuse. In light of this widespread interest, the Little In particular, it potentially provides a mechanism to Hoover Commission began its own independent exploit turnout differentials between regular and assessment of the recall system for state officials. off-cycle elections and a means to contest the will of (The Commission did not address the recall of local majorities as expressed in regular elections. Last, the government officials, and this report is focused threshold for use of the recall varies based on past solely on the recall system for officials of state voter turnout, a needlessly unstable standard. government.) Over the course of three hearings, the Accordingly, we recommend two key changes to Commission heard from current and former elected California’s recall system: REFORMING THE RECALL | 5 First, California should change the signature to administer recall elections and provide greater requirement for recalling statewide office-holders clarity around the recall process. from 12 percent of the vote in the last election for the The recall is rooted in voter supremacy. If they office to 10 percent of registered voters. Basing the wish, voters may evict from office an elected official signature threshold on registered voters will provide even when no election is normally scheduled. In greater consistency and predictability in the recall the Commission’s view, that is a good thing. But it is system—differences in turnout from one election equally important to balance voters’ right to recall to the next should not make it easier, or harder, officials who have lost their trust with protection for to recall an office-holder. Setting the signature the outcomes of democratic elections and the will of requirement at 10 percent of registered voters would electoral majorities. The Commission believes these also increase the number of signatures required changes do just that and thereby improve the recall to initiate a recall election. We believe this revised system, which has been a significant and valuable threshold increases the signature requirement component of California’s electoral system for more sufficiently to help deter abuse of the recall than a century. while leaving the recall accessible in exceptional circumstances and in cases where there is general, I. California’s Recall bipartisan dissatisfaction among voters with an office-holder. Process in Historical and Comparative Context Second, California should replace the existing two- part recall ballot with a “snap” special recall election. California’s constitution allows for the recall Under this approach, California would eliminate the of elected statewide officers, members of the “yes/no” question on the recall ballot and instead Legislature, members of the Board of Equalization, automatically place the office-holder subject to recall and judges of appellate courts.3 among the potential candidates. If the incumbent receives the most votes, the recall fails and he or In order to trigger a recall election, recall petitioners she remains in office. If, however, another candidate must, among other required steps, file a notice receives the most votes, that candidate is elected of intention to circulate a recall petition, receive successor and completes the remainder of the term. approval from the Secretary of State for the recall This approach guarantees that no office-holder is petition, obtain the required number of signatures recalled and replaced by a successor who receives from registered voters, and file the petition with the fewer votes. required signatures within 160 days.4 The Commission believes these changes will California requires that recall petitioners collect the strengthen the recall by creating a more consistent following number of signatures in order to qualify for signature threshold, requiring a higher modicum of a recall election: voter support for a recall to qualify for the ballot, and ensuring that an office-holder is only recalled if ◊ For statewide offices, signatures equal to 12 voters prefer one of the replacement candidates over percent of the vote from the last election for that official. the given office, with signatures from each of five counties equal to at least 1 percent of the Finally, we recommend several smaller, procedural counties’ last vote for that office. changes that would give elections officials more time 6 | LITTLE HOOVER COMMISSION ◊ For legislators, members of the Board of 1. The first asks whether the office-holder should Equalization, and judges, signatures equal to 20 be recalled. If a majority votes for recall, the percent of votes cast in the last election for the office-holder is removed from office. given office. 2. The second question asks who should replace Statute governs the process by which county the office-holder if a majority of voters vote for election officials and the Secretary of State review their recall. If a majority votes for recall on the signatures and evaluate if the petition contains the first question, the candidate who receives the required number of signatures. If the Secretary of most votes on the second question takes office, State determines that a recall petition has gathered even if more voters voted to retain the targeted a sufficient number of valid signatures within the official on the first question. The office-holder allotted time and has qualified for the ballot, the subject to recall may not be a candidate. If the Governor (or Lieutenant Governor in the event of a office-holder is retained, the second question is gubernatorial recall) calls an election that must be moot. held not less than 60 days and not more than 80 days from certification of the recall petition. Historical Background The recall election features a ballot with two separate The recall came to state government in California in questions: 1911, though some cities already had it. Governor Hiram Johnson and fellow Progressive reformers State vs. Local Recalls The vast majority of recalls involve local office-holders. According to Dr. David Carrillo, Executive Director of the California Constitution Center at Berkeley Law, “[The recall] is primarily a local tool…Of the 7,000 to 10,000 recall elections [nationwide] in the last 100 years or so, 99 percent of them were local contests.”5 School boards, city councils, and county boards of supervisors are closer to voters than state officials and their actions often have more immediate and apparent impact. Moreover, in comparison to state legislators, whose decision-making may be under scrutiny only during a portion of the legislative session, local officials make visible decisions continuously, providing more opportunity for voters to develop grievances and demand accountability.6 This report centers on state recalls. There are three reasons for this. First, as a body charged with improving state government, the recall of state office-holders falls most directly under the Commission’s purview. Second, although state law provides for the recall of local office-holders, many local governments, including the cities of Los Angeles and San Diego, have recall processes that are independently determined by their own charters.7 Finally, state law provides a different set of rules and requirements for the recall of local officials. Given the variability of local recall procedures and the urgency in addressing long recognized but unaddressed issues in the recall of state officials, the Commission focused its study on the recall of state office-holders. REFORMING THE RECALL | 7 proposed that voters adopt the recall, along being convicted for embezzlement, while Progressive with the initiative and the referendum, as direct Senator Edwin Grant was recalled the same year after democracy provisions that would help to limit the supporting legislation opposed by San Francisco’s influence of major corporations, especially the powerful political machine. Voters then attempted Southern Pacific Railroad, over state government. unsuccessfully to recall Senator James Owens in 1914 In enacting the recall, the goal for Johnson and after he failed to support a promised agenda.12 These fellow Progressives was to increase accountability of initial recall elections encapsulated the potential elected office-holders to the voters and support the of the recall to serve its intended purposes as a implementation of their agenda; Johnson referred to mechanism to hold politicians accountable to the will the recall as a tool to be used against “recalcitrant” of the voters. The recall of Senator Grant, meanwhile, legislators.8 showed early on the potential of the recall to also serve as a tool of partisan politics. In addition to being a means of advancing the Progressive agenda, however, the introduction In enacting the recall, the goal of the recall was also an assertion of popular sovereignty. In summarizing the national spread for Governor Johnson and fellow of the recall, the early twentieth-century historian Progressives was to increase and constitutional scholar, Charles Beard, observed, “The principle upon which it is based is simple, accountability of elected namely, that elected officers are merely the agents office-holders to the voters and of popular will, and that the electors should have an support the implementation of opportunity at all times to pass upon the conduct of their representatives.”9 According to the recall their agenda. amendment’s backers, the recall would provide citizens with, “the power to remove a dishonest, Following this initial flourish of activity, the recall incapable, or unsatisfactory servant. No private waned in California, as it did in other states, partnership or corporate employer could conduct probably as a result of the decline of the Progressive his or its businesses successfully without this right movement and the emergence of a more consensus- of recall. Why then should not the public whose driven style of politics in the context of two world business is vastly more important than private wars and the Great Depression. Attempts to recall enterprise be permitted to possess this power for its state office-holders were uncommon between 1915 protection if occasion should require?”10 and 1970; no state recall attempts qualified for the California voters overwhelmingly supported the ballot between 1915 and 1993. recall amendment: it passed with 76 percent of the Recall attempts increased after 1970 and especially vote and with the second highest margin of support after 1980, although most died for lack of signatures of the 23 proposals that were on the ballot during and did not make the ballot. A spate of legislative that election.11 The recall entered into the California recalls reached the ballot following the 1994 Constitution as Article XXIII. election, when a partisan deadlock in the Assembly Several recall elections soon illustrated the potential engendered political maneuvering in which several of the system to serve varying political purposes. Republicans effectively crossed the aisle to create Senator Marshall Black was recalled in 1913 after an alliance with Democrats. As a result, Republicans engineered recalls of two of their own legislators.13 8 | LITTLE HOOVER COMMISSION 2040 Recall Elections in California, 1911-2021 2021 2020 Attempted recall of Governor Gavin Newsom 2017 Recall of Senator Josh Newman – Ling Ling Chang elected successor 2007 2001 Attempted recall of Senator Jeffrey Denham Recall of Governor Gray Davis – Arnold Schwarzenegger elected succe2ss0o0r0 1995 1994 Recall of Asm. Doris Allen – Scott Baugh elected successor Recall of Asm. Paul Horcher – Gary Miller elected successor 1994 1994 Attempted recall of Asm. Michael Machado Attempted recall of Senator David Roberti 1980 1960 1915-1970 No state recall attempts qualified for the ballot 1940 1920 1914 Attempted recall of Senator James C. Owens 1913 1913 Recall of Senator Marshall Black – Herbert C. Jones elected Successor Recall of Senator Edwin E. Grant – Edwin L. Wolfe elected successor 1900 Source: California Secretary of State. “Recall History in California (1913 to Present).” https://www.sos.ca.gov/elections/recalls/recall-history-california- 1913-present REFORMING THE RECALL | 9 Figure 1: State Recall Attempts in California, 1911-2021 80 70 60 50 40 73 30 4 2 2 20 25 25 10 21 3 12 12 5 5 0 00 00 1 Recall Attempts Recall Elections Source: California Secretary of State. “Recall History in California (1913 to Present).” https://www.sos.ca.gov/elections/recalls/recall-history-california-1913- present Note: In this chart, the number of recall attempts is inclusive of the number of recall elections. By far the most famous use of the recall occurred their elected representatives. The growth of signature in 2003, when Governor Gray Davis—plagued by a collection as a business probably further stimulated power crisis and economic woes that had weakened recall attempts by making it more plausible for his popularity, even among Democrats—was recalled recall campaigns to gather the required number of and replaced by Arnold Schwarzenegger, who signatures. Special interest groups, including political received just under half the vote on the replacement parties, have also periodically seized on recalls as a question. Lieutenant Governor Cruz Bustamante, like means to advance their agendas.15 Davis a Democrat, ran as a replacement candidate, Nevertheless, it remains that case that attempts to encouraging voters to vote “no” on the recall and recall state office-holders rarely reach the ballot. It then vote for him on the second question. is even rarer that officials are actually removed by Several factors explain the growth in recall attempts voters (See Figure 1). There have been 179 attempts after 1980. Partisanship, populism, and voter distrust to recall state officials since the system was adopted, probably contributed to increased use of the recall but only 11 of these actually triggered an election and the initiative and referendum processes.14 As and only six ultimately led to an official’s ouster.16 with the initiative, growth in recall attempts stemmed in part from the activity of grassroots and activist groups dissatisfied with California government and interested in enforcing accountability on the part of 10 | LITTLE HOOVER COMMISSION California’s Recall in Table 1: Total Number of State Recall Elections Comparative Perspective Number of Recall State Discussions of the recall frequently compare aspects Elections of California’s recall process to the procedures Wisconsin 19 used in other states. Appendix 1 provides a table comparing key elements of states’ recall procedures; California 11 Appendix 2 compares states’ procedures for recalling Oregon 5 and replacing state office-holders. Michigan 4 To provide perspective on how California’s recall North Dakota 3 process compares to those of other states, the Colorado 2 following sections examine the frequency of recall Idaho 2 elections, the use or absence of a malfeasance Arizona 1 standard for recalls, and signature requirements for Washington 1 a recall petition to qualify for the ballot. FREQUENCY OF RECALL ELECTIONS Nineteen states allow for the recall of state officials. Table 2: State Recall Elections since 2000 However, state recall elections have only taken place in nine states. Nationally, since the adoption of the Number of Recall State state-level recall in the early twentieth century, there Elections have been 48 recall elections involving state office- holders (See Table 1).17 Wisconsin 16 California 4 Due to a slew of recalls in 2011-12, Wisconsin has used the system more than any other state, Michigan 2 accounting for about 40 percent of recall elections in Colorado 2 American history and roughly two-thirds since 2000 Arizona 1 (See Table 2). California is second behind Wisconsin in the occurrence of state recall elections. In addition, employed nationwide or in California. It is often half of all gubernatorial recall elections in American attempted, but it rarely qualifies for the ballot.”18 history and nearly a quarter of all recall elections GROUNDS FOR A RECALL involving state legislators have taken place in Seven states (Alaska, Georgia, Kansas, Minnesota, California. Montana, Rhode Island, and Washington) require that recall supporters demonstrate specific grounds Yet even in Wisconsin and California recall elections for recall, which some writers term a “malfeasance are rare. In testimony before the Commission, Dr. standard.”19 In these states, grounds for initiating David Carrillo, Executive Director of the California a recall vary but may include acts of malfeasance Constitution Center at Berkeley Law, observed or misconduct, conviction for a felony while in regarding the recall, “It is powerful and the voters office, corruption, improper conduct, or neglect of like it and overwhelmingly favor it, but it is rarely REFORMING THE RECALL | 11 duties.20 These states generally provide for court SIGNATURE REQUIREMENTS FOR A RECALL review of the sufficiency of the stated grounds for ELECTION recall, either automatically or at the request of the Almost all states have more stringent signature officer subject to recall. States differ, however, in requirements in place to trigger a statewide recall the extent to which courts may review the factual election than California, with most states requiring a basis or truthfulness of the recall allegations.21 In higher percentage of registered voters to sign a recall Minnesota, for example, the state Supreme Court petition for it to qualify for the ballot. Most states determines whether the grounds are sufficient and require recall petitioners to gather signatures equal may further assign a special master to evaluate the to 15-to-25 percent of votes cast for the office in the truth of allegations contained in the recall petition.22 last election.28 Other states base signature thresholds Conversely, the Alaska Supreme Court recently ruled off the number of registered voters at the time of the that the truth of recall allegations should be left to last election for the office or at the time of the most the determination of the voters.23 recent general election (See Appendix 1). Most states that allow for the recall of state office- In addition, most states allow recall supporters holders, including California, treat the recall as a less time to gather the signatures. In most states, purely political process and do not require recall petitioners have between 60 and 120 days to collect petitioners to demonstrate specified grounds. The signatures, fewer than the 160 days allowed in Michigan and New Jersey state constitutions, for California.29 Just five states—Alaska, Louisiana, New example, both contain the following language with Jersey, North Dakota, and Washington—allow more regard to launching a recall effort: “The sufficiency time for signature collection than California. of any statement of reasons or grounds…shall be a political rather than a judicial question.”24 On the other hand, although California has one of the The California Constitution similarly establishes, lowest signature thresholds by percentage of voters, “sufficiency of reason for the recall attempt is not California presents one of the highest bars for recall reviewable.”25 supporters to clear in terms of the absolute number of signatures required to qualify a recall petition for The designers of California’s 1911 recall amendment the ballot. Dr. Carrillo observed, “California seems appear to have intentionally excluded a malfeasance to have the easiest signature requirement in the standard from the recall. The recall’s proponents country to get on the ballot, but that is only on a argued that it was intended to remove an percentage basis. California is the largest state by far “unsatisfactory” official or one whose “stewardship by population. That means that the low percentage was questioned;” they do not appear to have still translates to a daunting signature requirement.”30 understood its use to be limited to instances of The proponents of the Newsom recall effort had egregious wrongdoing or prosecutable corruption.26 to obtain nearly 1.5 million signatures, more than Opponents of the recall amendment specifically hypothetical recall petitioners in any other state objected that it did not require recall petitioners would have to obtain in order to force a recall to demonstrate grounds for recall, protesting, election (See Table 3). “the proposed amendment requires no charges of misconduct, malfeasance, or corruption on the part of the officer, but just because he fails to perform some act, the performance of which would be popular, a movement to ‘recall’ him can be started.”27 12 | LITTLE HOOVER COMMISSION Table 3: Signature Requirements for a Gubernatorial Recall Compared Number of Signatures Required Signature Requirement for a Gubernatorial Recall in 2020 to Trigger a Gubernatorial State (See Appendix 1 for details) Recall Election (Rounded to Nearest 5,000) California 12% of total vote from last election for the office 1,495,000 Alaska 25% of total vote in last general election 70,000 Arizona 25% of total vote from last election for the office 595,000 Colorado 25% of total vote from last election for the office 630,000 Georgia 15% of registered voters at last election for the office 1,040,000 Idaho 20% of registered voters at last election for the office 170,000 Illinois 15% of total vote from last election for the office 680,000 Kansas 40% of total vote from last election for the office 420,000 Louisiana 20% of registered voters 600,000 Michigan 25% of total vote from last election for the office 1,065,000 Minnesota 25% of total vote from last election for the office 645,000 Montana 10% of registered voters at last general election 70,000 Nevada 25% of total vote in last election where gov. was elected 245,000 New Jersey 25% of registered voters at last general election 1,485,000 North Dakota 25% of total vote from last election for the office 85,000 Oregon 15% of total vote from last election for the office 280,000 Rhode Island 15% of total vote from last election for the office 55,000 Washington 25% of total vote from last election for the office 810,000 Wisconsin 25% of total vote from last election for the office 670,000 The Commission found that critiques of the recall II. Reforming the Recall: system focused around two perceived issues with The Big Issues California’s recall process: Like the 2003 gubernatorial recall before it, the 2021 ◊ It is too easy for a recall petition to qualify for the recall election prompted criticisms of California’s ballot. recall process and revealed weaknesses within ◊ The recall process includes features that are the recall system.31 As Dr. Karthick Ramakrishnan, potentially undemocratic. Professor of Public Policy at UC Riverside and The following sections explain why the Commission Executive Director of California 100, observed in concludes that California should adjust the signature his testimony before the Commission, “The current threshold for triggering a recall election but refrain system we have is over a 100 years old, with some from introducing a malfeasance standard for recalls. mild modifications, and it is archaic.”32 REFORMING THE RECALL | 13 They then discuss the potentially undemocratic Berkeley’s Institute of Governmental Studies show features of the recall and how California can best a majority of voters in favor of raising the signature address those issues. requirement for recall petitions.37 It Is Too Easy for a Statewide Nevertheless, some witnesses offered strong arguments for leaving the signature requirement Recall to Reach the Ballot unchanged. Dr. David Carrillo observed that raising We recommend that California adjust the signature the signature threshold increases the cost of threshold for recalling officials holding statewide putting a recall on the ballot and would make the office. In its 1968 review of the recall, the California recall inaccessible to genuine grassroots groups.38 Constitution Revision Commission concluded, “recall He further suggested that raising the signature should be treated as an ultimate power in electors threshold is probably unnecessary, since only six to be used only in rare situations.”33 The recall gives percent of recall attempts directed against state voters a mechanism to discharge an office-holder officials in California have ever reached the ballot.39 who has lost their trust or proven to be incompetent, Although some researchers suggest that technology corrupt, or unfaithful without having to wait until has functionally lowered the bar for recall efforts to the next election.34 David Cronin, a scholar of direct obtain the necessary signatures, digital tools and democracy, nevertheless emphasizes that it is a social media do not appear to have substantially “last resort.” According to Cronin, “prudent use of increased the number of recalls qualifying for the the recall requires that the number of signatures ballot.40 Even after 2000, only about 8.5 percent of be sufficiently high to protect elected officials from recall attempts have resulted in a recall election. The the irritation of fringe groups or mere partisan number of recall efforts against state officials and opposition.”35 The frequency of recall attempts the number of attempts that qualify for the ballot indicates, however, that recall proponents are have also remained relatively constant since the not necessarily reserving this tool for exceptional 1990s (see Figure 1). With regard to statewide recalls, circumstances. Multiple gubernatorial recall elections California’s sheer size means that an apparently also suggest that the current signature requirement and comparatively low signature threshold as a may no longer provide adequate protection against percentage of votes still translates to a sizable excessive resort to the recall. absolute number. ADJUSTING THE SIGNATURE THRESHOLD In addition, extenuating circumstances help to When the California Constitution Revision explain how the 2021 gubernatorial recall reached Commission reviewed recall procedures in the late the ballot. Witnesses noted that the Newsom recall 1960s and recommended leaving the signature petition would not have qualified for the ballot if thresholds for recall petitions unchanged, it noted a court had not granted its proponents a 120 day that no statewide recall had ever been successfully extension for collecting signatures, on the grounds initiated.36 Since 2000, however, California has that the COVID pandemic had reduced opportunities conducted two gubernatorial recall elections. The for signature gathering.41 Jessica Levinson, Professor experience of these elections appears to have of Law at Loyola Law School, observed that the 2021 convinced most voters that the threshold for recall election was the product of a “weird perfect recalling office-holders should be higher. Polls storm” of events, actions, and decisions, the most from the Public Policy Institute of California, UC San important of which was, “a state court judge saying, Diego’s Yankelovich Center for Social Science, and UC ‘yes, you have more time to gather signatures,’ and the Newsom team not appealing [that ruling].”42 14 | LITTLE HOOVER COMMISSION Popular Opinion and the Recall The recall is clearly popular with voters. Jessica Levinson, Professor at Loyola Law School, observed that voters view the recall “as a safety valve. We view it as a thing that provides us with power to ensure that we do not have a ‘rotten lawmaker’.”43 Recent surveys indicate that a vast majority of California voters favor having the ability to recall elected state office-holders. Public Policy Institute of California (PPIC) surveys from July and November 2021 found that 86 percent of California likely voters thought it was a good thing that the state’s constitution allowed for the recall of elected officials.44 Similarly, in September 2021, both UC Berkeley’s Institute of Governmental Studies (IGS) and UC San Diego’s Yankelovich Center for Social Science Research found that more than 70 percent of registered voters favored having the option to recall elected officials.45 Yet, while surveys show that California voters overwhelmingly support the recall, they also suggest that voters may favor reforms to the recall system. In November 2021, PPIC found that only a fifth of likely voters thought that the recall is fine that way it is; half thought that major changes in the recall process are needed. Meanwhile, UC San Diego found that more than two-thirds of voters thought the recall process needs either major or minor changes. Popular support for particular changes to the recall system varies considerably and is further discussed in the body of this report. Support for particular reforms may also shift as voters gain greater understanding of the impact these changes could have in practice. Public Polling on California’s Recall and Recall Reform UC San PPIC IGS Diego (Nov. 21) (Sept. 21) (Sept. 21) Likely Registered Registered General Opinions on Recall Is the recall a good thing?/Should voters continue to be allowed to recall 86% 75% 73% office-holders? Agrees that the recall process needs major or minor changes. 78% NA 68% Opinions on Specific Recall Reforms (Support/Oppose) Supports holding a runoff election either between the top two vote 72%/27% 63%/21% 53%/33% getters in the replacement election or if no candidate receives a majority of the vote.46 Supports instituting a malfeasance standard, such that officials can 64%/36% 59%/29% 66%/26% only be recalled for cause or requiring petitioners to specify reasons for removal. Supports increasing the signature requirement for gubernatorial recall 64%/36% 55%/30% 54%/35% petitions (PPIC and IGS: to 25%; UC San Diego: to 20%). Supports increasing the filing fee and signature requirement to run in the NA 51%/32% NA replacement election. Supports separating the recall and replacement elections, with the first NA NA 49%/37% election asking voters only if the office-holder should be recalled, and the replacement election being held only if the recall is successful. Supports automatically replacing a recalled governor with the lieutenant- NA NA 43%/41% governor. Supports delaying recall elections in odd years to the next regularly NA NA 36%/46% scheduled election in an even year. REFORMING THE RECALL | 15 Yet it remains the case that two of the last four can effectively reduce the number of signatures governors have been subject to recall elections; required for a recall to qualify for the ballot. Basing California is, moreover, the only state to have the signature threshold for recalls on registered conducted two gubernatorial recall elections. These voters, however, establishes a more consistent repeated recall elections strongly suggest that the standard for initiating a recall election, since the current signature requirement poses a lower barrier number of registered voters fluctuates less than than recall proponents face in other states. turnout between elections, and thus prevents a drop in turnout from effectively lowering the threshold for Given the administrative challenges surrounding a initiating a recall election (see Figure 2).47 By the same statewide recall and the potential for a recall election token, basing the signature threshold on the number to distract office-holders and disrupt governmental of registered voters also prevents an increase in processes, the Commission believes it is critical that turnout from making it harder to recall an office- California prevent overuse of the recall and ensure it holder. remains a last resort. The Commission is also deeply concerned at the potential, especially during a period Second, setting the signature requirement for of political polarization, for more frequent and more statewide recalls at 10 percent of registered voters aggressive use of the recall. Partisan use of the recall raises the signature threshold, protecting the recall dates back to its introduction in California; today, against both partisan abuse and overuse. Under however, there is a worrying prospect that partisans a 10 percent of registered voters threshold, the could use the recall tactically to threaten incumbents proponents of the 2021 gubernatorial recall would or, as discussed below, to exploit turnout differentials have needed to collect either nearly 2 million between regular and off-cycle elections with an eye signatures (if the threshold were based on the to overturning the outcome of regular elections. number of registered voters at the time of the last gubernatorial election) or more than 2.2 million signatures (if the threshold were based on the It is critical that California number of registered voters at the time of the most prevent overuse of the recall recent general election). The Commission believes and ensure it remains a last that this raises an already challenging bar sufficiently to discourage and deter use the recall as a tool of resort. pure partisan opposition while leaving it accessible in exceptional circumstances where there is general and bipartisan dissatisfaction with an office-holder. To address these concerns, we recommend that California change the signature requirement for The Commission acknowledges that changing the recalls involving statewide office-holders from 12 signature threshold may make it more difficult for percent of the vote in the last election for the office grassroots groups to access the recall. Nevertheless, to 10 percent of registered voters. We believe this we believe that it is more important to protect the change offers two significant advantages. First, it decisions of electoral majorities and preserve the is a more equitable and democratic standard for legitimacy of the recall by requiring broader support determining whether a recall qualifies for the ballot, for recall efforts to qualify for the ballot. We further because it is based on the total number of voters, note that the current signature requirement already not just the share who participated in the last constitutes an essentially insurmountable barrier election. It further addresses a structural weakness for grassroots recall efforts; neither the 2003 nor in California’s recall system. Currently, low turnout 16 | LITTLE HOOVER COMMISSION Figure 2: Signature Threshold: 10 Percent of Registered Voters vs. 12 Percent of Votes Cast Signature gathering thresholds established by each regularly scheduled midterm election (1990 - 2018) 2,500,000 2,500,000 2,000,000 2,000,000 1,500,000 1,500,000 1,000,000 1,000,000 500,000 500,000 0 0 1990 1994 1998 2002 2006 2010 2014 2018 1990 1994 1998 2002 2006 2010 2014 2018 10% of Registered Voters 12% of Votes Cast 10% of Registered Voters 12% of Votes Cast Source: California Secretary of State. “Historical Voter Registration and Participation in Statewide General Elections 1910-2020.” https://elections.cdn.sos.ca.gov/sov/2020- general/sov/04-historical-voter-reg-participation.pdf Note: This graph calculates the 12 percent threshold based on total votes cast, since the number of votes cast for each statewide office can differ. As a result, this figure slightly exaggerates the signature requirement under the 12 percent threshold, because the votes cast for individual statewide offices is less than the total number of votes cast overall. the 2021 gubernatorial recall campaigns were on the vote in the last election for the office), when track to collect enough signatures while relying calculated a percentage of registered voters, can vary solely on volunteers.48 Consequently, raising the substantially from district to district and from year signature requirement appears unlikely to prevent to year. This is a strong reason to base the signature a volunteer-only recall effort that would otherwise threshold for legislative recalls on registered voters, have succeeded. so that the bar to recall a legislator is more consistent regardless of district and election cycle. This same The Commission also believes that California should issue, however, also makes it difficult to determine base the signature requirement for legislative and what the new signature threshold should be. A new judicial recalls on the number of registered voters. signature requirement based on registered voters would likely raise the number of signatures required Establishing a revised signature threshold for in some districts while lowering it in others.49 legislative recalls is, however, more complicated than setting a new signature requirement for statewide As a result of this complexity, the Commission recalls. Voter turnout differs considerably among refrains from recommending a specific signature legislative districts and between presidential and threshold for legislative and judicial recalls at this midterm elections. As a result, the current signature time. threshold for legislative recalls (20 percent of REFORMING THE RECALL | 17 THE MALFEASANCE STANDARD: A GATEWAY and involve multiple rounds of appeal. In 2019, the TO LITIGATION Alaska Division of Elections rejected a request to There are also proposals for introducing a circulate a recall petition directed against Governor malfeasance standard for recall attempts and Mike Dunleavy; a superior court then allowed the limiting recalls to instances where office-holders have recall effort to proceed and the state Supreme Court committed demonstrable transgressions. According finally affirmed the lower court’s decision—nearly to polls from the Public Policy Institute of California, nine months after proponents first sought approval UC San Diego, and the UC Berkeley Institute of to circulate a recall petition.53 At the local level, the Governmental Studies, a majority of voters support Supreme Court of Washington recently overturned recalling elected officials only for illegal or unethical a superior court’s earlier ruling and determined that activity or requiring recall petitioners to specify the charges presented in a recall attempt against reasons justifying the recall, like concern over Seattle’s mayor were insufficient.54 corruption or criminal acts.50 Popular support for a Notably, there have also been occasions when malfeasance standard is understandable: the idea courts have shifted states’ standards for establishing that recalls should be reserved for demonstrable malfeasance. In 1984, the Washington Supreme wrong-doing can have appeal, especially when voters Court reversed its determination from prior cases perceive that recall supporters may be using the and ruled that recall petitions must be both legally recall as a mechanism to do an end-run around the and factually sufficient, requiring petitioners to regular electoral system. “state with specificity substantial conduct clearly The challenge is that the definition and applicability amounting” to the statutory grounds for recall and of terms like “malfeasance” or “neglect of duty” can expanding the ability of courts to determine whether be subjective and open to interpretation on the part the facts behind the recall attempt, if true, satisfy of petitioners, recall opponents, voters, and courts those grounds.55 Conversely, in 2021, the Alaska and jurists. On this point, Professor Jessica Levinson Supreme Court reduced the threshold for recall warned regarding the introduction of a malfeasance petitioners to establish grounds for recall of state standard, “The definitional issues will be hideous; office-holders. In earlier cases involving local recalls, you are going to be in litigation.” Professor Levinson the Alaska Supreme Court had determined that recall further explained, “Anybody who starts one of these statutes should be “liberally construed so that ‘the recalls will say, ‘Of course, this behavior rises to people [are] permitted to vote and express their the level [of malfeasance].’…Everybody genuinely will.’”56 In State of Alaska v. Recall Dunleavy, the court believes there truly was wrongdoing or…that carried this principle to state recalls, ruling that as ‘there is no there there’.”51 In testimony before the long as petitioners “make a prima facie showing of Commission, Senator Ben Allen similarly observed, at least one of the statutorily prescribed grounds “One person’s malfeasance is what someone else for recall,” then it was up to the voters to determine may consider to be a perfectly legitimate behavior, the truth of the claims and whether the allegations so that is obviously subjective to some extent.”52 justified recall.57 Moreover, voters’ understanding of what constitutes These state Supreme Court decisions illustrate malfeasance, corruption, or neglect of office the challenges around determining whether recall may not align with statutory definitions or legal allegations are legally sufficient under a malfeasance interpretations. standard, with the Washington and Alaska Supreme The example of other states suggests that litigation Courts differing in their determination of how around malfeasance standards can be drawn out liberally or narrowly to construe statutory grounds 18 | LITTLE HOOVER COMMISSION for recall. Moreover, neither of these decisions The state Constitution and statute further specify were unanimous, underscoring the potential that conviction for bribery, perjury, and malfeasance for courts and jurists to arrive at fundamentally in office results in forfeiture of office.59 The recall different conclusions regarding the application of a instead is rooted in asserting the power of voters malfeasance standard. to remove or retain an official in office, entirely separate from judicial processes: “Considering the The fact that the legal sufficiency of recall allegations nature of recall—placement of the ultimate power is a matter of interpretation further suggests that to remove an officer on the same persons who elect introducing a malfeasance standard would lead to him—there seems to be no compelling reason to litigation and court battles. Litigation around recall specify grounds of misconduct, or to permit judicial standards could, in turn, increase controversy around review.”60 Conversely, a malfeasance standard tends recall attempts and undermine public confidence in to make courts the arbiters of the recall process, the recall system. either creating, in Professor Levinson’s words, “a nightmare of litigation,” or potentially subverting the In practice, a malfeasance will of voters as to whether an official deserves recall. standard appears to undermine For these reasons, we believe California should the recall’s role as a tool of address the potential for overuse or abuse of the recall through adjustments to the signature direct democracy. requirement and changes to the recall process, as described in the following section, rather than through introduction of a malfeasance standard. In addition, conflicting or changing rulings under a malfeasance standard could sow confusion among A Democratic Outcome recall proponents, office-holders, and voters as to whether a recall attempt is legitimate. A malfeasance Much commentary around the 2021 gubernatorial standard that is tightly drawn would avoid these recall focused on the structure of California’s recall issues, but at the cost of disempowering voters process, which requires the office-holder to obtain a and restricting their ability to determine when an majority vote to remain in office but, in the event of elected official merits recall. Minnesota, for example, a successful recall, allows a replacement candidate addresses issues of litigation by narrowly defining to succeed to the office with a mere plurality of the grounds for recall and tasking the state’s Supreme replacement vote. This structure can result in a recall Court with determining the sufficiency of recall election where the office-holder is removed, despite allegations—with the result that attempts to recall more votes being cast against recall than for the state officials appear to be very rare and generally official’s replacement. Based on polling data, political dismissed before proponents begin gathering commentators and journalists speculated in the signatures.58 months before the election that the Newsom recall could conclude with 49 percent of voters wanting In practice, a malfeasance standard appears to Governor Newsom to remain in office, but with the undermine the recall’s role as a tool of direct governor replaced by a candidate who received less democracy. In its 1968 background study on recall, than 20 percent of the vote. Although ultimately the California Constitution Revision Commission this did not happen, it was a genuine possibility and noted that other mechanisms besides the recall one that should be troubling to those who believe in exist to remove state officials for criminal or democratic rule. corrupt misconduct, including impeachment. REFORMING THE RECALL | 19 The state indeed saw this situation in the 2018 recall an office-holder and replacing them with a candidate of Senator Josh Newman. Voters recalled Senator who would be unlikely to win in a regular election. Newman with 58 percent voting for recall and 42 The recall also makes it possible for a candidate to percentage voting against. However, the number of win with narrow support despite being unpopular votes cast to retain Newman (66,000) was greater with or unacceptable to most voters. than the number (50,000) cast for Ling Ling Chang, who replaced him.61 A similar outcome occurred in “The current system, when the 1995 recall of Assemblymember Paul Horcher; combined with an environment in that election, more votes were cast against the recall (20,000) than were cast (18,000) for Horcher’s of deep polarization and replacement, Gary Miller.62 rampant misinformation, makes In an interview with Politico regarding California’s a mockery of majority rule.” - Dr. recall process, Governor Davis said, “This is a game Karthick Ramakrishnan, Public of Russian roulette, and at some point, for sure, a governor who got more votes than his successor Policy Professor at UC Riverside will have to leave office because he failed to reach the 50% threshold.”63 Witnesses testifying before the Since turnout differentials vary by age, race, and Commission agreed that the potential for California’s socio-economic status, this potential has especially recall process to produce seemingly undemocratic significant implications for voter equity and electoral outcomes is a major weakness of the system. fairness. Dr. Ramakrishnan observed, “We know Professor Levinson observed that a system that from extensive literature over many election cycles allows a governor to be recalled while receiving 49 that voter turnout among young voters, voters percent of the vote and to be replaced by a candidate of color, renters, and low-income voters tends to who received a far smaller percentage, “is just not a be disproportionately lower in midterm elections good system, period,” because, “it clearly undermines as opposed to presidential elections, in primary the will of the people.”64 Dr. Ramakrishnan agreed, elections as opposed to general elections, in special suggesting, “The current system, when combined elections as opposed to regular elections, and then with an environment of deep polarization and off-cycle elections…versus those that are on-cycle rampant misinformation, makes a mockery of with either gubernatorial or presidential elections.”66 majority rule.”65 From this perspective, the recall has potential Witnesses warned that in a highly polarized and to exacerbate issues of underrepresentation in highly politicized environment, like that which exists California’s electorate.67 today, the fact that a replacement candidate can win This may be somewhat less of a concern during office while receiving fewer votes than the incumbent gubernatorial recalls—thanks to extensive news may encourage use of the recall to exploit turnout coverage and publicity, turnout increased during differentials between regular and off-cycle elections the 2003 and 2021 gubernatorial recalls compared and take advantage of perceived dips in an office- to the preceding gubernatorial elections.68 Surveys holder’s popularity. Since voter turnout generally also suggest that the composition of the 2021 recall declines in special and off-cycle elections, the recall electorate by race was probably broadly comparable provides an opportunity for a committed minority to to that of the 2018 gubernatorial electorate, though overturn the will of the electoral majority by recalling 20 | LITTLE HOOVER COMMISSION younger voters appear to have been less likely to then be replaced either through a separate special participate in the recall election than the preceding election or their office would be declared vacant, gubernatorial election.69 to then be filled as prescribed by law. ◊ Maintain the existing recall ballot, but require a Turnout disparities are likely, however, to be more runoff election between the top two vote getters noticeable during legislative recalls. In the 2018 if the office-holder is recalled but none of the recall of Senator Josh Newman, turnout dropped candidates receives a majority of the vote. by about 50 percent from the preceding general election. Turnout went back up dramatically in the The Commission considered these alternative 2020 general election in which Newman regained the approaches for reforming California’s recall system, seat.70 Although data is not available showing how all of which would require constitutional amendment the recall electorate compared to that in the general to execute. The Commission concluded that elections, Dr. Ramakrishnan observed, “When it eliminating the first question on the recall ballot and comes to state legislative recalls, you do not have treating the recall as a “snap” special election, with the kind of news coverage that you see in statewide the office-holder subject to recall placed among the recalls, and especially a gubernatorial recall; you will potential candidates, is the best way for California to not have as much advertising, you will not have as prevent undemocratic outcomes and ensure that the much spending, and what that means is lower voter winner is the person who receives the most votes. awareness and interest among lower-income voters, THE COMMISSION’S RECOMMENDATION: A younger voters, and voters of color.”71 These are “SNAP” SPECIAL RECALL ELECTION voters who have less opportunity and resources to A snap recall election presents voters with a ballot be able to follow the news closely and are likely to be that asks them to decide which of the candidates, less aware of what is happening politically. including the office-holder subject to recall, they want to represent them for the remainder of the term of How to Reform Recall and office. The candidate who receives the most votes, Replacement Procedures? whether the incumbent or a replacement, completes the term. California is one of two states with a two-part recall ballot that asks voters to simultaneously vote on This procedure guarantees that the candidate the question of recall and on the officer-holders’ who receives the most votes wins the election. potential replacement. Various proposals borrow It is, moreover, the only replacement procedure from models employed in other states to reform this that absolutely ensures that an office-holder is not approach and address the potential for an elected replaced by a successor who receives a smaller official to be recalled while receiving more votes than number of votes, since a drop in voter turnout their successor: between elections could result in either a runoff or a separate replacement election producing an eventual ◊ Eliminate the first question on the recall ballot winner who receives fewer votes than the recalled and treat the recall as a “snap election,” with the office-holder. office-holder subject to recall placed automatically among the potential candidates. The snap recall election thus protects the democratic ◊ Eliminate the second question on California’s recall principle that the person who receives the most ballot, such that the election would determine only votes should win. This is the core reason for the the question of whether to recall the office-holder. Commission’s support for this approach. If the officer-holder were recalled, he or she would REFORMING THE RECALL | 21 We believe, however, that introducing a snap recall of potential turnout differentials, it does require election also carries additional advantages. that the replacement candidate receive more votes than the incumbent officer, substantially reducing First, a snap recall election simplifies the existing the possibility that an unrepresentative fraction recall procedure. By eliminating the first ballot of the electorate can put into office a replacement question, the snap recall election avoids common candidate who does not have significant support confusion around whether a voter may vote “no” among voters. on recall and “yes” for a replacement candidate.72 Moreover, unlike other proposals, it does not require In recommending that California replace its existing an additional election, minimizing the timeline and recall and replacement procedure with a snap recall administrative burden of the recall process. election, the Commission notes potential objections to this approach but concludes that these are surpassed by its advantages. The snap recall election protects the democratic principle that The Commission acknowledges that there may be circumstances in which this approach could the person who receives the encourage tactical use of the recall and allow a most votes should win. minority party to obtain a result they ordinarily would not expect in a regular election. In particular, if the minority party believes it has a strong candidate, Second, we believe that this approach will generally they can use the recall to take advantage of a drop in disincentivize tactical use of the recall in cases where an office-holder’s popularity, knowing they will only the incumbent is relatively popular. Under the need to supplant the unpopular incumbent in the existing recall process, the incumbent office-holder snap election, rather than also beating a replacement needs a majority to vote “no” on the first question in candidate from the majority party in a replacement order to avoid recall. Under a snap recall election, the election. office-holder needs only to receive the most votes among the candidates running. Especially in districts In response, the Commission notes that this scenario where the incumbent’s party holds a significant voter assumes that one replacement candidate from the registration advantage, and where the incumbent minority party is able to prevent others from his or retains at least some substantial popularity, this her own party from entering the recall election. If, raises the bar for successfully recalling an office- however, multiple replacement candidates compete holder and will probably discourage recall attempts. over the same share of the vote, the incumbent The exception to this would be cases where there is more likely to survive the recall attempt. In the is clearly a very high level of voter dissatisfaction Commission’s opinion, the prospect that there with the incumbent. In that situation, a potential may be multiple replacement candidates from the replacement candidate who is more popular with minority party reduces the feasibility of tactical use of voters than the current office-holder could be the recall under a snap election model. elected, even if they were a member of the minority party. In addition, some witnesses testifying before the Commission argued that a yes/no, up/down Third, the snap recall election helps to address vote on the question of whether the incumbent’s equity concerns around recall elections. While the performance has been satisfactory is an essential snap recall election does not fully solve the problem component of the recall process. Yet, in discussing 22 | LITTLE HOOVER COMMISSION the differences between recall elections that ask A top-two runoff has two additional advantages. voters to make a “yes/no” decision on recalling First, a top-two runoff would bring recall elections an office-holder and those that allow the office- more nearly in line with California’s basic electoral holder to run against replacement candidates, Dr. model.74 In 2010, voters adopted a non-partisan Ramakrishnan observed that the choice between “jungle primary” in which voters may vote for any these options is a “philosophical question.” Is the candidate, regardless of party. The two top vote- recall primarily about the voters’ determination of getters then advance to the runoff, again regardless whether an office-holder has been unsatisfactory, or of party. Introducing a runoff to the recall would is it primarily about the will of the voters as to which align California’s recall elections process with the candidate, including the present office-holder, they state’s standard elections process, with the initial prefer to see in the office?73 In the Commission’s replacement election serving essentially as the non- opinion, the snap recall election puts the emphasis partisan primary. on the most important question for democratic values: who do voters prefer to see in office? In the words of Senator Ben In the words of Senator Ben Allen, who has proposed Allen, replacing California’s a constitutional amendment (SCA 3) that would existing recall procedure with replace California’s existing recall procedure with a snap recall election, this approach, “puts a dose of a snap recall election “puts a reality into the [recall] system.” With respect to the dose of reality into the [recall] “yes/no” vote on whether to recall an incumbent, system.” Senator Allen noted, “The real world does not work quite that way. It is not just a matter of being able to say hypothetically whether you like the bum or not. Second, a runoff is popular with voters. A top-two You have got to replace the bum.” runoff has frequently polled as the most popular reform option. A poll taken by the Public Policy Critically, the snap recall election supports a Institute of California immediately after the 2021 democratic outcome by ensuring that a state official recall election found this option to be supported will be recalled only if a replacement candidate by 72 percent of respondents, including 56 percent enjoys more support than the incumbent. of Republicans, who are often more reluctant than A RUNOFF Democrats or no party preference voters to support An alternative proposal for addressing the recall’s recall changes. The top-two runoff is a proposal that potential to produce undemocratic outcomes is to is likely to be supported by a broad swath of voters.75 introduce a top-two runoff. In this model, California Nevertheless, this proposal has serious drawbacks. would continue to use the existing two question recall ballot. However, in the event of a successful Although a runoff ensures that a recalled office- recall where no replacement receives a majority holder’s replacement receives a majority vote, it vote, the two replacement candidates who received leaves open the possibility that the runoff may the most votes would proceed to a separate runoff feature two candidates who are both unpopular with election. This approach would prevent a replacement most voters. candidate from being elected based on a narrow plurality of vote and ensure that the eventual winner Under the two-part recall ballot, an official subject receives a majority vote. to recall has an incentive to prevent members of REFORMING THE RECALL | 23 his or her party from running in the replacement The Commission does not, however, believe election, in order to encourage their party’s voters to that ranked-choice voting is familiar enough to vote against recall—as opposed to voting for recall Californians at this time to be introduced as part and for a replacement candidate from their own of infrequent recall elections. The challenge of party. The introduction of a runoff could change educating voters about the procedure in the context this dynamic: the prospect of a runoff may induce of the short timeframe and unpredictable timing of the office-holder’s party to ensure it has a viable recall elections would be formidable. candidate among the replacement candidates to A SEPARATE REPLACEMENT ELECTION avoid being excluded from the runoff. However, if Proposals for a separate replacement election the incumbent’s party fails to field a replacement envision a system in which, initially, voters decide candidate and if the incumbent is so unpopular that only on whether to recall the targeted official. If he or she is recalled, the runoff could leave voters a majority votes for recall, a separate election is with two candidates who they do not like or who are subsequently held to determine the replacement. unrepresentative of the district. This is a serious and in many ways attractive In addition, the introduction of a runoff can extend proposal, and the Commission considered it the length of the recall process and potentially carefully. This system would have the advantage of requires an additional election to replace a recalled eliminating entirely the incentive for the targeted office-holder. This compounds the expense and official to clear the field of his or her co-partisans, administrative burden of the recall process and since at the time of the first election—when the creates a period when the office will be vacant or targeted official is on the ballot—there is no ballot filled by an interim office-holder. It also creates the question at all regarding a replacement. Instead, it potential for a decline in turnout between the initial gives replacement candidates from the office-holder’s recall election and the eventual runoff, particularly party the opportunity to run in the replacement among low-propensity voters. The Commission election if the incumbent is recalled, increasing the believes this decline in turnout could present potential for that party to retain the office and thus concerns for equity and inclusion, since the voters disincentivizing tactical use of the recall. participating in the runoff may be less representative of the district than those voting in the initial recall However, this approach suffers from the same and replacement election. critical flaws as the top-two runoff. Like the runoff, separating the recall and replacement elections One solution to the problem of a potential decline extends the recall process and requires election in turnout is to retain the current system of holding administrators to hold separate elections. Moreover, the recall election and the replacement election on if the replacement election system includes the the same day, but use ranked-choice voting on the possibility of a top-two runoff to guarantee a majority replacement question to produce an instant runoff. winner, this system holds out the potential for three This would address the downsides of a runoff—the separate elections—the initial recall election, the first need to hold another election and the possibility of round of the replacement process, and the top-two a drop in turnout between the recall election and runoff. This would add to the cost and administrative the runoff. Use of ranked-choice voting would also burden of the recall process and result in an allow the state to consolidate the recall, replacement, extended vacancy in the office or an interim office- and runoff elections into one day, maximizing the holder. As with the runoff, the Commission is also efficiency of the recall. 24 | LITTLE HOOVER COMMISSION concerned that a drawn-out system with multiple it is conceivable that recall proponents could seek elections might drive down turnout, especially among a governor’s recall in order to gain control of the low-propensity voters, which could have negative governorship. Dr. Ramakrishnan observed, “You do consequence for voter equity and inclusion. Since the not want to create a situation where there may be an replacement election would be held separately from incentive for mischief down the road.”77 the recall election, a decline in turnout potentially Even when the governor and lieutenant governor allows an unrepresentative fraction of the electorate belong the same party, automatic replacement would to put into office a replacement candidate who does make the lieutenant governor the beneficiary of a not have support of most voters. governor’s removal from office and could, in theory, REPLACEMENT AS WITH A VACANCY incentivize the lieutenant governor to want to see the CAUSED BY ANY OTHER MEANS governor fail. The Commission notes that Lieutenant In a majority of states, recall procedures call for a Governor Eleni Kounalakis has spoken out against recall election that features a straight “yes or no” vote automatic replacement for this reason. Lieutenant on whether the office-holder ought to be removed Governor Kounalakis has further suggested that this from office. In most of those states, the office is then replacement method could impact the ability of the filled like a vacancy caused by any other means— lieutenant governor to work successfully with the constitutional succession in the case of gubernatorial governor.78 recalls and either appointment or special election in event of the recall of other state officials. Replacing other recalled state office-holders through procedures for filling vacancies also creates This is the most common method among states difficulties. In the case of California legislators, for recalling and replacing office-holders. At the a vacancy in office is filled by special election, gubernatorial level, in 13 states the recall ballot asks which presents many of the same issues as a only if the office-holder should be recalled; in 11 of recall replacement election with regard to turnout these states, a recalled governor would be replaced differentials while extending the timeframe of by constitutional succession. In a majority of states, the recall and replacement process. Vacancies legislative and other statewide recalls also entail a in statewide offices other than the governor, distinct “yes or no” recall election that results in the meanwhile, are filled by gubernatorial appointment, office being declared vacant if the recall is successful which could have the appearance of being a rather (See Appendix 2). undemocratic outcome for an exercise in direct democracy. With regard to California recall reform, commentators usually discuss this approach in the III. Reforming the Recall: context of gubernatorial recalls and the possibility Procedural Changes of automatically replacing a recalled governor with the lieutenant governor. There are, however, In addition to eliciting critiques of the recall process, several features that warn against this approach. In the 2021 gubernatorial recall also revealed that particular, automatic replacement or constitutional some rules and procedures relating to the recall succession can encourage tactical recalls if the are in need of revision and updating. California’s governor and lieutenant governor do not belong Secretary of State, Dr. Shirley Weber, related to to the same political party, as has historically often the Commission that the experience of the recall, been the case in California.76 Were the governor and “made it very clear to me that this is a process that lieutenant governor to again be of different parties, REFORMING THE RECALL | 25 has existed now for over 100 years without much from the Secretary of State’s certification that the change and probably could use some work in terms recall petition has sufficient signatures. The state of changing and being more specific about what Constitution allows recall elections to be delayed in are the rules and regulations and the methods of order to be consolidated with regularly scheduled implementation.”79 elections: recall elections may be held within 180 days of certification of the recall petition in order The state recall went largely unchanged until to consolidate the recall with the next regularly 1974, when, based on recommendations from scheduled election. the California Constitution Revision Commission, Proposition 9 substantially amended the With regard to the timeframe for recall elections, constitutional recall provisions. This proposition California’s recall system is a 1911 procedure clarified points of potential contradiction within operating in a 2021 electoral system. The 60-to-80 the original Article XXIII, simplified and reorganized day timeline for conducting recall elections reflects a constitutional provisions relating to recall time when California’s electorate was much smaller (Proposition 14 in 1976 subsequently moved and when elections were much less complex. The these provisions to Article II of the Constitution), use of mail-in ballots, early voting, and policies and shifted most procedural details relating to designed to make elections more accessible and administration of the recall from the Constitution to understandable, like the provision of sample ballots, statute.80 all require advance planning and time to implement. These changes addressed points of ambiguity in According to witnesses, the discrepancy between the original constitutional recall provisions and the constitutional timeframe for recalls and the established the 160-day time limit for collecting administrative realities of contemporary elections signatures. Subsequent statutory changes, however, puts enormous pressure on county election officials. have produced uncertainty and confusion around some recall procedures, including the nomination With regard to the timeframe standards for recall replacement candidates. for recall elections, California’s The Commission finds that the three most important recall system is a 1911 procedure areas for procedural reform of the recall are: the timeframe in which recall elections are conducted; operating in a 2021 electoral the timing of when office-holders may be subject to system. recall proceedings; and the nomination procedures for replacement candidates. Addressing the timeframe for conducting recall elections would Kim Alexander, President and Founder of the require constitutional amendment. Clarifying California Voter Foundation, and Cathy Darling nomination procedures may, however, be changed Allen, Shasta County Clerk and Registrar of Voters through statute. and California Voter Foundation Board Chair, observed regarding the 2021 gubernatorial recall, TIMEFRAME FOR CONDUCTING RECALL “California is home to over 22 million registered ELECTIONS voters and ensuring all of them had their recall Since the introduction of the recall, the California election sample ballots and vote-by-mail ballots Constitution has required that recall elections be in hand under current statutory deadlines placed held no less than 60 and no later than 80 days 26 | LITTLE HOOVER COMMISSION enormous pressure on county election offices across state officials place some limit either on how soon the state. There was widespread concern that not all after assuming office state officials may be subject to counties would be able to get their ballots printed recall attempts or how close to the end of the term of and delivered in time.”81 According to Alexander and office recall attempts may be made. State restrictions Allen, the 60-to-80 days allowed for holding the recall on when recall proponents may initiate recall election, “is simply not enough time for counties to proceedings against an office-holder vary significantly prepare for an election.”82 (See Appendix 1). Nevertheless, the most common limits on how soon recall proponents may attempt There was bipartisan agreement on this point. to recall an office-holder are prohibitions against With respect to the administration of the 2021 initiating recall proceedings during an official’s first gubernatorial recall, Secretary of State Weber six months/180 days in office.87 The most common commended county elections officials: “Those restrictions on how late in an office-holder’s term who administer elections in the 58 counties did a recalls may be attempted are prohibitions against remarkable job in making sure that the recall election either recall proceedings or recall elections during took place without glitches and without a host of the last six months/180 days of the official’s term issues that could have happened because of the of office88 or within six months of the officer’s next quickness in which it is done.”83 Former Secretary of election.89 State Bill Jones agreed that the time frame for the recall creates a challenging schedule for elections Under the original Article XXIII recall procedures, a officials to ensure that voters receive election recall petition could not be circulated or filed against materials and ballots on time: “It is a very tight time a statewide official in California during their first six schedule…that gives you the dates to be able to hit months in the office; legislators were not subject to your windows to be able to get the ballot done and recall until after five days “from the convening and get it out in front of the public without discriminating organizing” of the Legislature following their election. against anyone because of a late delivery of the mail In its 1968 review of recall provisions, the California or information.”84 Constitution Revision Commission recommended expanding these “grace periods” to the first six The California Voter Foundation advised revising months and final six months of the office-holder’s the timeline for scheduling state recall elections and term in office. The intent of the Constitution Revision suggested providing the same amount of time for Commission was to establish the same grace period conducting state recall elections as statute currently for legislators as other office-holders and to avoid the allows for local recall elections: at least 88 days and cost of a recall election when an official would soon at most 125 days.85 Since the timeframe for recall stand for reelection or give up the office.90 elections is set in the Constitution, changing this timing would require Constitutional amendment. The Legislature did not take up the Constitution Revision Commission’s recommendation for WHEN OFFICE-HOLDERS MAY BE RECALLED extending elected officials’ grace period and this California is the only state that has no restrictions on recommendation did not feature in the 1974 how early or how late in an office-holder’s term recall constitutional amendment.91 Instead, Proposition 9 proponents may initiate recall proceedings, though equalized grace periods for legislators and statewide California does prohibit new recall efforts against an officers by completely eliminating them. officer for six months following an unsuccessful recall election.86 All other states that allow for the recall of REFORMING THE RECALL | 27 Yet, while Proposition 9 eliminated grace periods Given concern about the potential for continuous for state officials, the Legislature preserved them recall attempts against state officials, the for local elected officials, although it did reduce the Commission believes it reasonable to equalize grace period an officer had to be in office before being periods for local and state officials and to extend subject to recall from six months to 90 days.92 In existing prohibitions on recall proceedings against 1977, the Legislature set the current limits on when local officials to state office-holders. Although the local officials may be recalled, prohibiting recall state Constitution allows the Legislature to adjust the proceedings against local officials in the first 90 days timing of local recalls through statute, it appears that of their current term and during the last 6 months reinstating grace period for state officials requires of their term of office.93 As a result, while the 1974 Constitutional amendment.95 amendment of constitutional recall provisions aimed NOMINATION OF REPLACEMENT to equalize the grace periods provided to legislators CANDIDATES and other state officers, subsequent statute created A final area for reform lies around procedures for a disjuncture in when recall proponents may seek nominating replacement candidates. Under current the recall of state office-holders as compared to local practice, replacement candidates qualify for the officials. ballot under the same standards used to nominate primary election candidates. During the 2021 California is the only state that gubernatorial recall, replacement candidates were required to submit nomination papers with 65 to has no restrictions on how early 100 signatures, and then either pay a filing fee of or how late in an office-holder’s $4,194.94 or provide a nomination petition with the term recall proponents may signatures of 7,000 registered voters. initiate recall proceedings. There are a number of issues with existing replacement candidate nomination procedures: It appears reasonable to have some restrictions on First, the use of primary election nomination when recall proponents may seek to recall an office- procedures creates a low bar for candidates to holder. As the Constitution Revision Commission enter the replacement election and encourages explained in 1968 with regard to limitations on recall frivolous filings from individuals who do not have a proceedings in an office-holder’s first months in realistic chance. On this point, Dr. Carrillo related, office, these restrictions provided an office-holder, “Everybody knows that one of the standout features “an opportunity to indicate whether or not he has of California’s recall is the ‘clown-car’ replacement the ability and intention to properly perform the candidate race: 135 people in the 2003 Gray Davis duties of the office before being subject to recall recall; this year, 46 people…A more rigorous proceedings.”94 This appears equally true today, replacement candidate qualification would ensure as evidenced by limitations on recall proceedings that only those candidates with a significant against local officials in their first 90 days in office. modicum of public support would appear on the Similarly, the growing cost and complexity of ballot.”96 elections add weight to the idea of limiting recall activity when an office-holder is due to stand for Changing nomination procedures could help address reelection or leave office. the “circus”-like atmosphere of recall elections in California. Other witnesses, however, warned against 28 | LITTLE HOOVER COMMISSION making it too difficult for would-be candidates to for nominating replacement candidates should be qualify. Former Secretary of State Jones suggested, that formerly used for independent nominees for “It is interesting to note that you have quite a large office, especially since they too did not face primary group of people that paid the fee and want to run, elections. Independent nominations for statewide and I think that is a good thing. Democracy is best office required signatures equal to one percent of when people feel like they can participate…the more registered voters.101 participation the better.”97 The nomination standard for Second, and more importantly, the nomination standard for recall replacement candidates is not recall replacement candidates specified in either the Constitution or in statute. The is not specified in either the absence of a clearly defined nomination process for replacement candidates has led to uncertainty and Constitution or statute. litigation. As adopted in 1911, the constitutional recall There has thus been legal and procedural uncertainty provision required that replacement nominees surrounding the appropriate standard and procedure submit a nomination petition with signatures equal for nominating replacement candidates. During the to at least one percent of the total votes cast in the 2003 recall of Governor Davis, a lawsuit challenged last election for the relevant office—a requirement Secretary of State Kevin Shelley’s use of primary intended to prevent “frivolous” filings for office.98 election nomination procedures. In Burton v. Shelley, In 1974, Proposition 9 moved this provision from the California Supreme Court dismissed the suit and the Constitution into statute; in 1976, the signature upheld the Secretary of State’s discretion relating to requirement was then eliminated as part of a which nomination procedure to use. Nevertheless, broader statutory reorganization of the recall Supreme Court justices highlighted the ambiguity process. At that time, the statutory language relating around replacement nominations, observing that to nomination of replacement candidates was revised the Secretary of State faced, “a highly confusing to read, “nominations of candidates to succeed statutory scheme.”102 Chief Justice Ron George further the recalled officer shall be made in the manner concluded that replacement candidate nomination prescribed for nominating a candidate to that office procedures deserved the attention of the Legislature, in a regular election insofar as that procedure in the Constitution Review Commission, and the Law consistent with this article.”99 Review Commission.103 Yet, as Secretary of State Weber related, “None of that took place. No one Following the change in statute language, Secretaries wanted to take it up. As a result, in 2021 we were of State consistently interpreted statute to mean faced with some of the same challenges.”104 that replacement candidates were to be nominated following primary election procedures. However, Finally, an additional challenge around replacement the statute relative to primary election nominations nomination procedures is that existing law provides specifically states that these provisions do not for a potentially very limited time for replacement apply to recall elections, though that language was nominees to declare their candidacy and submit adopted when replacement candidate procedures nomination papers. Currently, nominees must file were still in the state Constitution.100 An alternate their nomination papers, including signatures, “no interpretation is that the appropriate procedure less than 59 days prior to the date of the election and not before the day the order of the election REFORMING THE RECALL | 29 is issued.”105 Yet, a recall election may be held 60 the same concerns as her predecessor had in 2003. days from final certification of the recall petition She warned that if California does not act now, “As and declaration of the election, potentially leaving we did in 2003, people will go away and never come replacement candidates as little as just one day back and then we will find ourselves 18 years from to file their paperwork. Under the original 1911 today, again with the same kind of question…‘why did recall provisions, replacement candidates were not people address the issues?’”107 not required to file nomination paperwork until 25 Mark Baldassare, President of the Public Policy days before the election, providing 35-to-55 days to Institute of California, similarly urged California submit nomination papers. to move quickly to capitalize on the experience of In an illustration of the interrelationship between the recent gubernatorial recall election. According procedural elements of the recall, providing more to Dr. Baldassare, “state leaders should seize the time for replacement candidates to file their moment and give the voters a chance to weigh in on paperwork may be an additional argument for improvements to the California recall process.” The extending the timeframe for conducting recall recent gubernatorial recall election raised awareness elections. By extending the recall election timeframe, among voters of the recall, how it operates, and candidates could be given additional time to submit where there may be problems with the current recall their paperwork, while still ensuring that nominations system. Like Secretary Weber, Dr. Baldassare warned are submitted early enough to allow for the that California must not let the current opportunity preparation and distribution of mail-in ballots. to implement recall reforms slip away: “Right now, the window is open for reform, and the November IV. Recommendations 2022 election ballot is only a year away.”108 The recall is a central component of California’s Recommendation 1: Amend the state system of direct democracy. It is a highly popular tool Constitution to set the signature requirement for of electoral accountability that affirms and manifests recall petitions directed against statewide office- voters’ power over their elected representatives.106 holders at 10 percent of registered voters. There are, however, structural and procedural Basing the signature requirement for recalls on the weaknesses in California’s recall system that impact number of votes cast in the last election creates an the administration of recalls and undermine electoral inconsistent threshold for a petition to qualify for the integrity and democratic principles. ballot. Moreover, the current signature threshold for During her testimony before the Commission, recalls involving statewide office-holders no longer Secretary of State Weber argued that California provides adequate assurance that recall elections needs to take advantage of the current moment will remain rare and reserved for exceptional to enact long overdue reforms to the state’s recall circumstances. system. Like the recent recall election, the 2003 In order to create a more consistent signature gubernatorial recall election laid bare problems with threshold, deter tactical and partisan use of the California’s recall process and prompted numerous recall, and ensure that a recall attempt has a recommendations for improving the recall. Yet sufficient chance of success to merit the expense the state ultimately failed to address the issues. and administrative burden of a recall election, Secretary Weber observed that despite all the the Commission concludes that the signature recommendations, she faced the same issues and requirement should be based on registered voters 30 | LITTLE HOOVER COMMISSION and that recall petitioners should be required to to recall on the ballot as a candidate for the office. demonstrate a higher modicum of support for recall. The recall would fail and the office-holder would remain in office if the office-holder receives a Accordingly, the Legislature should refer a majority or plurality of the vote.109 The amendment constitutional amendment to the voters in November retains the existing constitutional prohibition on 2022 raising the signature requirement for triggering candidacies in recall elections involving appellate a recall election involving a statewide officer to 10 judges and thus does not apply to recalls involving a percent of the number of registered voters. judge of the Supreme Court or a court of appeal. Recommendation 2: Amend the state The Commission recommends that the Legislature Constitution to replace the existing recall refer SCA 3 to the voters in November 2022. procedure with a “snap” special recall election, with the office-holder subject to recall placed Recommendation 3: Amend the state automatically among the replacement Constitution to extend the timeframe for holding candidates. the recall election from 60-to-80 days to 88-to-125 days. Based on the Commission’s review, the most serious weakness in California’s recall system is the potential Since 1911, the California Constitution has required for a replacement candidate to gain office while that recall elections be conducted no less than 60 receiving fewer votes than the incumbent office- and no more than 80 days from the certification of holder. The Commission recommends that California the recall petition as sufficient. This election timeline solve this problem by eliminating the first question was, however, the product of a very different model on the recall ballot and treating the recall as a snap of election administration. The shift to mail-in ballots, special election. need to produce ballots in multiple languages, and the sheer scale of statewide elections in California point to the need to provide election administrators “As we did in 2003, people will with more time to conduct recall elections. go away and never come back In order to provide county elections officials with and then we will find ourselves adequate time to administer recall elections, the 18 years from today, again with Commission recommends that the Legislature refer a constitutional amendment to the voters in November the same kind of question...’why 2022, extending the timeframe for conducting recall did not people address the elections to no less than 88 days and no more than issues?’” - Secretary of State Dr. 125 days from certification of the recall petition as sufficient. This brings the timeframe for conducting Shirley Weber state recall elections into line with the timeframe for local recall elections. Senator Ben Allen proposed a constitutional Recommendation 4: Uphold the efficiency and amendment (SCA 3) in December 2020 that would integrity of the recall system by amending the adopt this approach. Senator Allen’s proposed state Constitution to prohibit the initiation of amendment would eliminate the first recall ballot recall proceedings at the start and end of an question and automatically place the official subject office-holder’s term of office. REFORMING THE RECALL | 31 State law currently prohibits recall petitioners from choose the specific recall reforms they think are initiating recall proceedings against local officials in merited. It will also ensure that one amendment the first 90 days of their current term and during does not potentially sink the others; otherwise, if the last six months of their term of office. The the amendments are presented to voters as a single Commission recommends that the Legislature refer proposition and one of the amendments proves a constitutional amendment to the voters extending unpopular on Election Day, it could undermine the these grace periods to state office-holders. entire package of constitutional reforms. Although the Commission recommends against the Recommendation 6: Clarify the nomination institution of a malfeasance standard, it does believe standard for recall replacement candidates. that the integrity of the recall system depends on The absence of a clear statutory basis for the recall proponents making a good faith argument that nomination of replacement candidates was a source office-holders have shown themselves to be worthy of litigation in the 2003 gubernatorial recall and of recall by their actions and performance, rather has created uncertainty for Secretaries of State than based only on their party affiliation. A 90-day in determining what replacement nomination prohibition on initiating recall proceedings provides a procedure should be used in recall elections. minimum of time for an office-holder to demonstrate by their performance that it is conceivable that a The Commission recommends that the Legislature majority of voters might vote to recall them. address this ongoing problem by establishing in statute what nomination procedure ought to be Prohibiting the commencement of recall proceedings used for replacement candidates. The Commission during the last six months of the term of office refrains from putting forward a specific nomination similarly ensures that office-holders do not face a standard, since the appropriate standard may vary potentially continuous stream of recall activity and depending on the implementation of other recall limits recall proceedings at a time when the office- reforms. For example, requiring nominees to submit holder either faces reelection or is about to depart a higher number of signatures may only be practical from office. if the Legislature also provides a greater time window Recommendation 5: Refer constitutional in which nominees may file their paperwork. amendments relating to recall reform to the The Commission thus recommends that the voters as separate ballot propositions. Legislature conduct a review of recall replacement The Commission further recommends that the procedures to determine which nomination Legislature, in passing constitutional amendments standard is most appropriate for the replacement extending the timeframe for recall elections, election, in light of other recall reforms that may be restricting recall proceedings at the start and end introduced through constitutional amendment or of an office-holder’s term of office, adjusting the statutory change. As part of this review, Commission signature requirement for a recall petition to qualify encourages the Legislature to consider whether for the ballot, and replacing the existing recall California should increase the nomination threshold procedure with a “snap” special recall election, for individuals to qualify as replacement candidates. present these options to the voters as separate ballot The Legislature may consider if there is a nomination propositions. standard that offers an appropriate compromise between the relatively low threshold provided by Referring these measures to voters as separate ballot primary election nomination procedures and the propositions will empower voters to deliberate and high threshold for independent nominees. 32 | LITTLE HOOVER COMMISSION Appendix 1: State Recall Comparison Tables Collection Who Can Be When Office-Holders May Be State Signature Requirement Time for Timing of the Recall Election Recalled Recalled Signatures Recall election to be held not less than Statewide officers: 12% of the last 60 days and not more than 80 days from vote for the office, with signatures Elected state certification that the recall petition has from each of five counties equal to officers, 1% of the last vote for the office in sufficient signatures. members of No restrictions on the timing of the county California the Legislature, 160 days recall attempts. Recall elections may be held within judges of courts Legislators, members of the Board 180 days from certification of the recall of appeal and of Equalization, judges: 20% of the petition in order that the recall election trial courts total votes cast in the last election may be consolidated with the next for the office regularly scheduled election. Application for recall may not be All elected public 25% of the total votes cast in the Recall election to be held not less than filed during the first 120 days of officers of the preceding general election in the 60 and not more than 90 days after Alaska the term of office; recall petition Not Specified state except state or in the district of the official notification that the recall petition was may not be filed during the last judicial officers subject to recall. properly filed with sufficient signatures 180 days of the term of office. Recall petitions may not be circulated against office-holders during the first 6 months they Every public Recall election to be held on next election have held office. Recalls may be 25% of the total votes cast in the Arizona official holding 120 days date that is 90 days or more after the order attempted against legislators last general election for the office. an elective office calling the election. five days after the beginning of the first legislative session after election. Recall petitions may not be circulated or filed in an official’s first 6 months in office, or during Recall election to be held not less than Every elective the last 6 months of their term of 25% of the total votes cast in the 30 and not more than 60 days after Colorado officer of the 60 days office. Recalls may be attempted last general election for the office. declaration of the sufficiency of the recall state against legislators 5 days petition. after the beginning of the first legislative session after election. LITTLE HOOVER COMMISSION REFORMING THE RECALL | 33 Appendix 1 Continued Collection Who Can Be When Office-Holders May Be State Signature Requirement Time for Timing of the Recall Election Recalled Recalled Signatures Statewide officers: 15% of registered voters at time of last Recall applications may not be election, at least 1/15 from each Every public Recall election to be held not less than filed in the first 180 or during congressional district in the state. Georgia official holding 90 days 30 days and not more than 45 days after the last 180 days of the term of an elective office being called. office. Others: 30% of voters registered to vote for the office at time of last election. Statewide officers: 20% of Every public Recall petitions may not be registered voters at time of last Recall elections must be held more officer holding circulated against an office- gubernatorial election than 45 days after the election is called. Idaho elective office holder until they have held office 60 days Election to be held at next regular election except judicial under the current term for at Legislators: 20% of registered date; time to election can vary. officers least 90 days. voters at time of last election 15% of the total votes cast for governor in the preceding general election, with at least 100 signatures from each of at least 25 Affidavit providing notice of counties. intent to circulate a recall petition The recall election is to occur not more Illinois Governor may not be filed in the first 6 Affidavit to seek the recall must 150 days than 100 days after the certification of the months of the Governor’s term of be signed by at least 20 members recall petition as sufficient. office. of the House and 10 members of the Senate, with no more than half the signatures of members of each chamber from the same political party. Recall applications may not be Recall election to be held not less than All elected public filed in the first 120 days of the 40% of the total votes cast in the 60 and not more than 90 days after the Kansas officers except 90 days term of office or within the last last general election for the office. notification that the recall petition was judicial officers 200 days of the term of office. properly filed and sufficient LITTLE HOOVER COMMISSION REFORMING THE RECALL | 34 Appendix 1 Continued Collection Who Can Be When Office-Holders May Be State Signature Requirement Time for Timing of the Recall Election Recalled Recalled Signatures Varies by number of voters: Election to be held at next regular If more than 25,000 but fewer than Any state official Recall petitions may not be filed election date; time to election can vary. If 100,000 registered voters: 25% of except judges or submitted for certification the recall election is not held on a primary Louisiana registered voters in voting area 180 days of the courts of during the last 6 months of an election date, the proclamation for the record official’s term of office. election shall be issued on or before the If more than 100,000 registered 54th day prior to the election. voters: 20% of registered voters in voting area If the officer’s term is 2 years or less: recall petitions may not be filed during the first 6 months they hold office or during the last All elective Special recall elections are to be held not 6 months of the term of office. 25% of total votes cast for officers except less than 95 days after the recall petition Michigan governor in the officer’s district at 60 days judges of the is filed. Election to be held at next regular If the officer’s term is more than last gubernatorial election. courts of record election date; time to election can vary. 2 years: recall petitions may not be filed during the first year they hold office or during the last year of the term of office. State executive officers, legislators, and A recall election may not occur 25% of total votes cast for the Minnesota judges of the less than 6 months before the office at the most recent general 90 days Unspecified supreme court, end of the term of office. election. court of appeals or a district court Statewide officers: 10% of registered voters at time of last A recall petition may not be Any person general election. approved for circulation until the Montana holding a public 3 months Unspecified office-holder has held office for 2 office of the state District officers: 15% of registered months. voters in the relevant district at time of last election. LITTLE HOOVER COMMISSION REFORMING THE RECALL | 35 Appendix 1 Continued Collection Who Can Be When Office-Holders May Be State Signature Requirement Time for Timing of the Recall Election Recalled Recalled Signatures A recall petition cannot be circulated or filed until an Every public officer has held the office for 6 25% of the total votes cast in the officer in the months. Recall petitions may be relevant jurisdiction at the last Recall election to be held within 30 days Nevada 90 days state, except circulated against members of election at which the official was of the issuance of the call for the election. elected judges the legislature 10 days after the elected. beginning of the first legislative session after election. Recall election to be held at next general election occurring at least 60 days following the fifth business days after Any elected Office-holders may not be Governor: 320 service of the certification of the recall official in recalled in their first year of 25% of the registered voters in the days petition. If the notice of intention to the state or New Jersey office. Recall elections cannot be relevant electoral district at the file a recall petition called for a special representing the held in the 6 months prior to the time of the last general election. All others: 160 election, the special election is to be held state in the U.S. office-holder’s next election. days in the period not less than 60 days and Congress not more than 66 days following the fifth business day after service of the certification of the recall petition. An official may not be recalled if Any elected 25% of the votes cast for the Recall election to be held no less than the recall special election would North official of office of governor in the officer’s 95 days and no more than 105 days occur within one year of the next Not Specified Dakota the state or electoral district in the preceding following certification that the recall regularly scheduled election in legislative district general election. petition is sufficient. which they could be reelected. A recall petition cannot be circulated until an officer has held the office for 6 months. Every public 15% of votes cast for governor Recall election to be held within 35 days Recall petitions may be Oregon officer in the in officer’s district during the last 90 days of the recall petition being filed with circulated against members of state gubernatorial election. sufficient signatures the legislature 5 days after the beginning of the first legislative session after election. LITTLE HOOVER COMMISSION REFORMING THE RECALL | 36 Appendix 1 Continued Collection Who Can Be When Office-Holders May Be State Signature Requirement Time for Timing of the Recall Election Recalled Recalled Signatures Governor, Lt. Recalls may not be instituted Governor, Rhode during the first 6 months or 15% of total votes cast for the Secretary of 90 days Unspecified Island during the last year of the term of office in the last general election. State, Treasurer, office. Attorney General Statewide officers: 25% of the total Statewide Every elective votes cast for the office in the last Recall petitions may not be filed officers: 270 Recall election to be held not less public officer of election. in the last 6 months before the days than 45 and not more than 90 days Washington the state except election in which the official is from certification that recall petition is judges of courts Legislators: 35% of the total votes subject to reelection. Others: 180 sufficient. of record cast for the office in the last days election. Recall election to be held on the Tuesday of the 6th week commencing after the Any state, 25% of total votes cast for the filing of the recall petition as sufficient. If judicial, No recall petition may be filed in office of governor within the a recall primary is required, the primary Wisconsin 60 days congressional or the first year of the term of office district of the officer subject to is held on the 6th week and the recall legislative official recall at the last election. election is held on the Tuesday of the 4th week commencing after the recall primary. From National Conference of State Legislatures, https://www.ncsl.org/research/elections-and-campaigns/recall-of-state-officials.aspx, and Commission staff review of relevant state election and recall laws. LITTLE HOOVER COMMISSION REFORMING THE RECALL | 37 Appendix 2: Recall and Replacement Procedures State procedures for recalling and replacing state office-holders fall into three general approaches: ◊ One Ballot; Two Questions: The recall ballot includes two questions, the first asking whether the office-holder should be recalled and the second asking who should replace the office-holder if a majority votes for recall. This is the approach employed in California. ◊ Yes/No Recall Election: In a majority of states that allow for the recall of state office-holders, the recall ballot asks only if the office-holder should be recalled. If voters decide to recall the official, the office becomes vacant. Most states replace the recalled official as they would fill any other vacancy in that office, which, depending on the state and particular office, may be by constitutional order of succession, appointment, or special election. A few states fill all offices vacated by recall through a special successor election. ◊ “Snap” Special Recall Election: In a few states, the certification of a recall petition triggers what is essentially a “snap election,” where both the office-holder subject to recall and challengers may run. Recall processes in states can vary, however, depending on the office subject to recall. Michigan, for example, uses different recall processes for gubernatorial and legislative recalls, while Illinois only allows for gubernatorial recalls. New Jersey uses a two-part ballot for some recall elections, but only where the office-holder subject to recall is not the governor or a member of the legislature. In addition, in states where a successful recall creates a vacancy, vacancies may be filled differently depending on the office in question: generally, states fill gubernatorial vacancies through constitutional succession, while filling legislative vacancies either through special elections or appointment. The following tables show state procedures for recalling and replacing governors, holders of statewide office other than the governorship, and legislators. Table 1: Gubernatorial Recall and Replacement Processes States Employing Recall Recall Process How Recalled Governors Are Replaced Process One Ballot; Two Questions (First If a majority votes for recall, then the question asks if official should be replacement candidate who receives the 2 States – California and recalled; second asks who should highest share of the vote on the second Colorado replace the official if they are question takes office. recalled) Vacancy created by recall is filled the same way as a vacancy caused by any other 11 States – Alaska, Idaho, means. Kansas, Louisiana, Michigan, Minnesota, ◊ Gubernatorial vacancy is filled by Montana, New Jersey, constitutional succession. In most Oregon, Rhode Island, Yes/No Recall Election states, this means that the lieutenant Washington governor replaces a recalled governor. All vacancies created by recall filled by replacement election. Lt. Gov. or an 2 States – Georgia and acting governor serves until replacement Illinois election. Candidate who receives the highest share 4 States – Arizona, of vote finishes the term of office. Office- “Snap” Special Recall Election Nevada, North Dakota, holder subject to recall may run in the Wisconsin election. 38 | LITTLE HOOVER COMMISSION Appendix 2 Continued Table 2: Recalls of Other Statewide Officers How Recalled Statewide Officers other States Employing Recall Recall Process than Governor Are Replaced Process One Ballot; Two Questions (First If a majority votes for recall, then the question asks if official should be replacement candidate who receives the 3 States – California, recalled; second asks who should highest share of the vote on the second Colorado, New Jersey replace the official if they are question takes office. recalled) Vacancy created by recall is filled the same way as a vacancy caused by any other means. ◊ Methods for filling vacancies in 9 States – Alaska, Idaho, statewide office vary by state and by Kansas, Louisiana, office. Minnesota, Montana, ◊ A vacancy in the lieutenant Oregon, Rhode Island, Yes/No Recall Election governorship is usually filled by Washington appointment.* ◊ Statewide offices other than governor and lieutenant governor are filled by appointment in most states. All vacancies created by recall filled by 1 State - Georgia replacement election. Candidate who receives the highest share 5 States – Arizona, of vote finishes the term of office. Office- “Snap” Special Recall Election Michigan, Nevada, North holder subject to recall may run in the Dakota, Wisconsin election. *Note: Vacancies in the lieutenant governorship are filled by appointment in: Alaska, Idaho, Kansas, Louisiana, Montana, Rhode Island, and Washington. The Rhode Island and Washington State Constitutions do not specify a method of filling a vacancy in the lieutenant governorship; in both states, courts have ruled that the governor has the power to appoint a successor to the office. Minnesota fills vacancies in the lieutenant governorship by automatic constitutional succession. REFORMING THE RECALL | 39 Appendix 2 Continued Table 3: Legislative Recall and Replacement Processes Recall Process for State How Recalled State Legislators Are States Employing Recall Legislators Replaced Process One Ballot; Two Questions (First If a majority votes for recall, then the question asks if official should be replacement candidate who receives the 2 States – California and recalled; second asks who should highest share of the vote on the second Colorado replace the official if they are question takes office. recalled) 7 States – Alaska, Idaho, Legislative Vacancy created by Kansas, Montana, vacancies filled by recall filled the same New Jersey, Oregon, appointment.* way as a vacancy Washington caused by any other Legislative vacancies Yes/No Recall Election 2 States – Louisiana and means. filled by special Minnesota election. All vacancies created by recall filled by 1 State - Georgia replacement election. Candidate who receives the highest share 5 States – Arizona, of vote finishes the term of office. Office- “Snap” Special Recall Election Michigan, Nevada, North holder subject to recall may run in the Dakota, Wisconsin election. *Note: Method and duration of appointment varies by state. 40 | LITTLE HOOVER COMMISSION Notes 1. Don Thompson, “Democrats Could Change 10. Senator Lee C. Gates and Assemblyman William ‘Weaponized’ California Recall System,” Associated C. Clark, “Reasons Why Senate Constitutional Press (September 15, 2021), https://apnews. Amendment No. 23 Should Be Adopted,” com/article/california-recall-politics-elections- Proposed Amendments to the Constitution of the california-coronavirus-pandemic-c9963319bf State of California, with Legislative Reasons for and d8754dc77687049ba6e0e0; Ben Christopher, against Adoption Thereof in Voter Information “Full Speed Ahead on Overhauling California Guide for 1911, General Election (1911). Retrieved Recalls,” CalMatters (September 29, 2021), https:// from: https://repository.uchastings.edu/ca_ calmatters.org/politics/2021/09/california-recall- ballot_props/24/. Accessed November 15, 2021. change-law/. 11. David Carrillo, see endnote 5. 2. Bill Jones, Former California Secretary of State, 12. Joshua Spivak, Recall Elections: From Alexander Testimony to Commission, November 8, 2021. Hamilton to Gavin Newsom (2021), pp. 40-42. 3. For purposes of the recall, California state 13. Spivak, Recall Elections, pp. 42-45, see endnote 12. law considers judges of trial courts to be local officers, see Elections Code § 11001. 14. Mark Baldassare and Cheryl Katz, The Coming Age of Direct Democracy: California’s Recall and Beyond 4. National Conference of State Legislatures (NCSL), (Lanham, MD: Rowman & Littlefield Publishers, Recall of State Officials, (September 15, 2021), Inc., 1997), p. 21. https://www.ncsl.org/research/elections-and- campaigns/recall-of-state-officials.aspx. 15. Mark Baldassare, California in the New Millennium: The Changing Social and Political Landscape 5. David Carrillo, Executive Director of the California (Berkeley, CA: University of California Press, Constitution Center at Berkeley Law, Testimony 2000), pp. 82-3. Spivak, Recall Elections, p. 82, see to the Commission, October 14, 2021. endnote 12. 6. Thomas E. Cronin, Direct Democracy: The Politics of 16. California Secretary of State, Elections Division, Initiative, Referendum and Recall (Cambridge, MA: Recall History in California (1913 to Present) Harvard University Press, 1989), p. 152. https://www.sos.ca.gov/elections/recalls/ 7. The state Constitution specifically establishes recall-history-california-1913-present. Accessed that provisions for local recalls in state law do not September 28, 2021. affect counties and cities whose charters provide 17. Nationally, recall elections have involved: 39 for recall. See California State Constitution, Article legislators; 4 governors (2 in California, 1 in II, Section 19. Wisconsin, and 1 in North Dakota); 2 public 8. Governor Hiram Johnson, First Inaugural service commissioners (Oregon); 1 lieutenant Address, January 3, 1911. Retrieved from: governor (Wisconsin); 1 attorney general (North https://governors.library.ca.gov/addresses/23- Dakota); and 1 commissioner of agriculture and hjohnson01.html. Accessed November 15, 2021. labor (North Dakota). Spivak, Recall Elections, pp. 40-62, see endnote 12. NCSL, Recall of State 9. Charles Beard, Documents on the State-Wide Officers, see endnote 4. Initiative, Referendum, and Recall (New York: Macmillan, 1912), p. 52. 18. David Carrillo, see endnote 5. REFORMING THE RECALL | 41 19. Spivak, Recall Elections, pp. 14-15, see endnote 12. Michigan State Constitution, Article II, Section 8, http://www.legislature.mi.gov/ 20. NCSL, Recall of State Officials, see endnote 4. (S(xpzrtqpt5kt0tou3n0kym3rs))/mileg.aspx?page= getObject&objectName=mcl-Article-II-8. 21. Minnesota, Georgia, and Kansas allow election officials or courts to deny recall petitions if they 25. California State Constitution, Article II, Section determine that the allegations do not constitute 14(a). This language, revised slightly in 1974, sufficient grounds for recall or that facts do tracks closely with the original recall amendment. not support the alleged grounds for recalls. Washington state law allows for judicial review 26. Gates and Clark, “Reasons Why Senate of the sufficiency of recall allegations, but not Constitutional Amendment No. 23 Should Be their truthfulness; nevertheless, in 1984, the Adopted,” see endnote 10. Washington Supreme Court ruled in Chandler v. 27. Senator J. B. Curtin, “Reasons Why Senate Otto and Cole v. Webster that recall proponents Constitutional Amendment No. 23 Should must establish a factual and judicial basis for Not Be Adopted,” Proposed Amendments to their allegations. Rhode Island, meanwhile, only the Constitution of the State of California, with allows recalls in the case of indictment for a Legislative Reasons for and against Adoption felony, conviction of a misdemeanor, or a finding Thereof, in Voter Information Guide for 1911, of probable cause of violation of the code of General Election (1911). Retrieved from: https:// ethics by the state ethics commission. Finally, repository.uchastings.edu/ca_ballot_props/24/. Alaska and Montana limit grounds for recall but Accessed November 15, 2021. do not provide for official or judicial review of the factual basis of recall allegations. 28. For gubernatorial recalls, Illinois further requires legislative signatures from members of both 22. Minnesota Statutes, Chapter 211C. Recall of political parties. Elected Officials. https://www.revisor.mn.gov/ statutes/cite/211C. Accessed November 18, 2021. 29. NCSL, Recall of State Officials, see endnote 4. “Recall of State Elected Officials: A Proposed Minnesota Constitutional Amendment,” 30. David Carrillo, see endnote 5. Information Brief, Minnesota House of Representatives, Research Department, October 31. Vikram David Amar, “Adventures in Direct 1996, pp. 7-8, http://www.house.leg.state.mn.us/ Democracy: The Top Ten Constitutional Lessons hrd/pubs/recall96.pdf. Accessed September 28, from the California Recall Experience,” California 2021. Law Review vol. 92, no. 3 (May 2004): 927-958. 23. Opinion of the Supreme Court of Alaska in State 32. Karthick Ramakrishnan, Professor of Public Policy of Alaska v. Recall Dunleavy, Opinion No. 7542, July at UC Riverside and Executive Director, California 16, 2021, p. 24. Retrieved from: https://law.justia. 100, Testimony to the Commission, October 28, com/cases/alaska/supreme-court/2021/s-17706. 2021. html. Accessed November 16, 2021. 33. California Constitution Revision Commission, 24. New Jersey State Constitution, Article Article XXIII, Recall: Background Study (May 1968), I, Section 2b, https://www.njleg.state. p. 21. nj.us/lawsconstitution/constitution.asp. 42 | LITTLE HOOVER COMMISSION 34. Cronin, Direct Democracy, pp. 131, 133, see 41. The proponents behind the Newsom recall endnote 6. effort began collecting signatures on June 10, 2020 and originally faced a November 17, 2020 35. Cronin, Direct Democracy, p. 135, see endnote 6. deadline. In requesting an extension to the 160- day deadline, the proponents reported collecting 36. California Constitution Revision Commission, 675,000 signatures as of October 15, 2020. Article XXIII, Recall, p. 20, see endnote 33. They ultimately collected 2,161,349 signatures, 37. PPIC found 55 percent of likely voters in favor of which 1,719,900 were valid. See Lara Korte, of raising the signature requirement in its “‘Lost in the Shuffle.’ Did Democrats Miss a July 2021 poll and 64 percent in favor in its Chance to Block a Newsom Recall Election?” November 2021 poll. UC San Diego found 54 Sacramento Bee (March 15, 2021), https://www. percent of registered voters in favor of raising sacbee.com/news/politics-government/capitol- the signature requirement and IGS found 55 alert/article249843718.html. County Clerk/ percent of registered voters in favor. See Mark Registrar of Voters Memorandum #20251, Baldassare, “What’s Wrong with the Recall,” “Recall of Governor Newsom, Filed by Orrin E. PPIC Blog (July 27, 2021) https://www.ppic.org/ Heatlie: Extension of Time to Circulate Petitions blog/whats-wrong-with-the-recall/, and “After and Revised Calendar of Events,” November 17, the Recall, More Californians Want Changes to 2020. Retrieved from: https://elections.cdn.sos. the Process,” PPIC Blog (November 9, 2021), ca.gov/ccrov/pdf/2020/november/20251ra.pdf. https://www.ppic.org/blog/after-the-recall-more- Accessed December 6, 2021. californians-want-changes-to-the-process/. See 42. Jessica Levinson, Professor at Loyola Law School, also, Mark DiCamillo, “While there is bipartisan Testimony to the Commission, October 28, 2021. support in California to preserve the right to recall elected officials, majorities favor reforming 43. Jessica Levinson, see endnote 42. the process,” Berkeley IGS Poll (Release #2021-18, September 13, 2021), https://escholarship.org/ 44. Baldassare, “What’s Wrong with the Recall,” and uc/item/6kt7w3tsl; Thad Kousser and Cassidy “After the Recall, More Californians Want Changes Reiler, “Reforming the Recall? California Voters’ to the Process,” PPIC Blog (November 9, 2021), Perspectives on the Process,” UC San Diego, see endnote 37. Yankelovich Center for Social Science Research 45. DiCamillo, “While there is bipartisan support in (September 2021), https://yankelovichcenter. California to preserve the right to recall elected ucsd.edu/_files/reports/Reforming-The-Recall- officials, majorities favor reforming the process,” California-Voters-Perspectives-On-The-Process- and Kousser and Reiler, “Reforming the Recall? FINAL.pdf. Accessed September 24, 2021. California Voters’ Perspectives on the Process,” 38. David Carrillo, see endnote 5. On this point, see see endnote 37. also, Elizabeth Garrett, “Democracy in the Wake 46. UC San Diego phrased this question differently of the California Recall,” University of Pennsylvania than the other pollsters. The UC San Diego poll Law Review vol. 153 (2004): 239-284, at pp. 243-4. asked voters if they supported requiring a runoff 39. David Carrillo, see endnote 5. election if the recall were successful. The PPIC and IGS polls asked voters if they supported a 40. Spivak, Recall Elections, pp. 77-78, see endnote 12. runoff when no replacement candidate receives a majority vote. REFORMING THE RECALL | 43 47. For example, turnout in the 2002 general election to a high of more than 17 percent of registered barely topped 50 percent of registered voters, voters. the lowest level since the recall was adopted. As 50. In July 2021, PPIC showed 60 percent of likely a result, proponents of the 2003 recall petition voters in favor of limiting recalls to instances against Governor Gray Davis only had to gather of illegal or unethical activity; that number had about 928,000 signatures to qualify the recall risen to 64 percent in PPIC’s November 2021 poll for the ballot. Had the state then employed a of likely voters. UC San Diego shows 66 percent threshold of 10 percent of registered voters, of registered voters approving of a malfeasance proponents would have had to gather more standard, while UC Berkeley’s Institute of than 1.5 million signatures. On the other hand, Governmental Studies shows about 60 percent of a sharp increase in turnout from 2014 to 2018 registered voters in favor of allowing officials to vastly increased the qualification threshold, be recalled only for cause. See endnote 37. expressed as a share of registration. In 2014, turnout was only 42 percent of registered voters, 51. Jessica Levinson, see endnote 42. meaning that a recall petition directed against Governor Brown in the wake of that election 52. Ben Allen, California State Senator (SD 26), could have qualified with barely more than Testimony to the Commission, November 8, 900,000 signatures, or about 5 percent of total 2021. registration. In 2018, turnout was almost 65 percent of registered voters, so the recall petition 53. Becky Bohrer, “Effort to Recall Alaska against Governor Newsom needed about 1.5 Governor Dropped after 2-Year Push,” million signatures to qualify, or nearly 8 percent Associated Press (August 25, 2021), https:// of the total 2018 registration. apnews.com/article/business-alaska- d60018aa574e2be0048fd5f00eaa238c. 48. Shaun Bowler and Bruce Cain, “Introduction— Recalling the Recall: Reflections on California’s 54. David Gutman, “Washington Supreme Court Recent Political Adventure,” PS: Political Science Tosses Out Durkan Recall Effort,” Seattle Times and Politics vol. 37, no. 1 (January 2004): 11-14, at (October 8, 2020), https://www.seattletimes.com/ p. 8. David Carrillo, see endnote 5. seattle-news/politics/washington-supreme-court- tosses-out-durkan-recall-effort/. 49. Following the 2018 election, the signature threshold for legislative recalls would have 55. Opinion of the Supreme Court of Washington in been, on average, the equivalent of 12 percent Chandler v. Otto, Opinion Nos. 50885-2, 50886-1, of registered voters in a legislative district. By 50887-9, 50888-7, December 26, 1984. Retrieved district, however, the threshold varied from as from: https://law.justia.com/cases/washington/ little as 7 percent of registered voters to as much supreme-court/1984/50885-2-1.html. Accessed as 15 percent. High turnout in 2020 generally November 16, 2021. Opinion of the Supreme raised the signature threshold as a percentage Court of Washington in Cole v. Webster, Opinion of registered voters: based on the 2020 election, No. 50917-4, December 26, 1984. Retrieved the signature threshold for legislative recalls from: https://law.justia.com/cases/washington/ currently stands, on average, at about 15 percent supreme-court/1984/50885-2-1.html. Accessed of registered voters, but varies by district from November 16, 2021. a low of about 10 percent of registered voters 44 | LITTLE HOOVER COMMISSION 56. Opinion of the Supreme Court of Alaska in State 63. Carla Marinucci, “Schwarzenegger Booted Him. of Alaska v. Recall Dunleavy, see endnote 23. Now He Has a Message for Newsom,” Politico (September 12, 2021), https://www.politico. 57. Opinion of the Supreme Court of Alaska in State com/states/california/story/2021/09/12/this-is- of Alaska v. Recall Dunleavy, see endnote 23. a-game-of-russian-roulette-gray-davis-on-the- newsom-recall-1390902. Some legal scholars 58. The Minnesota Secretary of State website have argued that the structure of California’s displays two Minnesota Supreme Court orders recall violates the equal protection clause of from 2013 dismissing recall petitions directed the 14th Amendment to the U.S. Constitution, against two legislators. See Minnesota Secretary though jurists disagree on this point and of State, Elections & Voting, Recalls, https://www. federal courts have repeatedly dismissed the sos.state.mn.us/elections-voting/how-elections- argument. Erwin Chemerinsky and Aaron Edlin, work/recalls/. Accessed November 30, 2021. The “There Is a Problem with California’s Recall. It’s Minnesota Supreme Court has also dismissed Unconstitutional,” New York Times (August 11, recall petitions against former Governor Jesse 2021), https://www.nytimes.com/2021/08/11/ Ventura and current Governor Tim Walz. opinion/california-recall-election-newsom.html; Commission staff have not identified an instance Vikram David Amar and Evan Caminker, “Déjà when the Minnesota Supreme Court allowed a vu All Over Again: California’s upcoming Vote recall petition directed against a state official to for Governor Is Resurfacing some Old—and advance to signature gathering. Flawed—Constitutional Critiques,” Verdict (August 59. California Constitution Revision Commission, 16, 2021), https://verdict.justia.com/2021/08/16/ Article XXIII, Recall, pp. 4-5, see endnote 33. deja-vu-all-over-again-californias-upcoming- Article VII, Section 8 of the California Constitution recall-vote-for-governor-is-resurfacing-some-old- provides, “Laws shall be made to exclude and-flawed-constitutional-critiques. persons convicted of bribery, perjury, forgery, 64. Jessica Levinson, see endnote 42. malfeasance in office, or other high crimes from office or serving on juries.” Government Code § 65. Karthick Ramakrishnan, see endnote 32. 1021 implements this provision. 66. Karthick Ramakrishnan, see endnote 32. 60. California Constitution Revision Commission, Article XXIII, Recall, p. 19, see endnote 33. 67. Mark Baldassare, Dean Bonner, Alyssa Dykman, and Rachel Lawler, California’s Exclusive Electorate: 61. California Secretary of State, Final Official Election A New Look at Who Votes and Why It Matters Results – Senate District 29, Special Recall (Public Policy Institute of California, September Election, June 5, 2018, https://www.sos.ca.gov/ 2019). Retrieved from: https://www.ppic.org/wp- elections/prior-elections/special-elections/2018- content/uploads/californias-exclusive-electorate- recall-sd29/election-results. Accessed November a-new-look-at-who-votes-and-why-it-matters.pdf. 22, 2021. 68. More than 9.4 million Californians voted in 62. California Legislature, Journal of the Assembly. the 2003 gubernatorial recall, compared to Legislature of the State of California, 1995-96 7.7 million in the 2002 gubernatorial election. Regular Session: December 5, 1994 to November 30, Nearly 12.9 million Californians voted in the 2021 1996, (Volume 1), p. 1450. gubernatorial recall, compared to 12.7 million REFORMING THE RECALL | 45 in the preceding 2018 gubernatorial election. Chronicle (September 27, 2021), https://www. California Secretary of State, Historical Voter sfchronicle.com/politics/article/Sticking-points- Registration and Participation in Statewide General emerge-over-potential-recall-16491534.php. and Special Elections, 1910-2021. Retrieved from: 79. Shirley Weber, California Secretary of State, https://www.sos.ca.gov/elections/prior-elections/ Testimony to the Commission, November 8, statewide-election-results/2021-ca-gov-recall/ 2021. statement-vote. Accessed November 16, 2021. 80. California Constitution Revision Commission, 69. Karthick Ramakrishnan, see endnote 32. Kousser Proposed Revision of Article II, Article XIV, Article and Reiler, “Reforming the Recall? California XV, Article XXI, Article XXII, Article XXVII, Article Voters’ Perspectives on the Process,” see endnote XXXIV of the California Constitution (1970), pp. 37. 45-56. Political Reform Initiative, California 70. California Secretary of State, General Election – Proposition 9 (1974). Retrieved from: https:// Statement of Vote, November 8, 2016, https:// repository.uchastings.edu/cgi/viewcontent. www.sos.ca.gov/elections/prior-elections/ cgi?article=1794&context=ca_ballot_props. statewide-election-results/general-election- Accessed December 3, 2021. Miscellaneous november-8-2016/statement-vote, and General Constitutional Revisions, California Proposition Election – Statement of Vote, November 3, 2020, 14 (1976). Retrieved from: https://repository. https://www.sos.ca.gov/elections/prior-elections/ uchastings.edu/ca_ballot_props/835/. Accessed statewide-election-results/general-election- January 24, 2022. november-3-2020/statement-vote. Accessed 81. Kim Alexander, President and Founder of the November 18, 2021. California Voter Foundation, and Cathy Darling 71. Karthick Ramakrishnan, see endnote 32. Allen, Shasta County Clerk and Registrar of Voters and Board Chair, California Voter Foundation, 72. Nicole Nixon, “Yes, You Can Vote on Who Would Written Statement to the Commission, October Replace Gavin Newsom Even if You Vote No on 28, 2021. the Recall,” CapRadio (August 11, 2021), https:// www.capradio.org/articles/2021/08/11/yes-you- 82. Kim Alexander and Cathy Darling Allen, see can-vote-on-who-would-replace-gavin-newsom- endnote 81. even-if-you-vote-no-on-the-recall/. 83. Shirley Weber, see endnote 79. 73. Karthick Ramakrishnan, see endnote 32. 84. Bill Jones, see endnote 2. 74. Karthick Ramakrishnan, see endnote 32. 85. Kim Alexander and Cathy Darling Allen, see 75. Baldassare, “After the Recall, More Californians endnote 81. The timeframe for conducting local Want Changes to the Process,” see endnote 37. recall election is specified in Elections Code § 11242. 76. David Carrillo, see endnote 5. 86. California State Constitution, Article II, Section 18. 77. Karthick Ramakrishnan, see endnote 32. 87. Arizona, Colorado, Georgia, Illinois, Nevada, 78. Bob Egelko, “Sticking Points Emerge over Oregon, Rhode Island. Of these states, Arizona, Potential California Recall Reforms,” San Francisco 46 | LITTLE HOOVER COMMISSION Colorado, Nevada, and Oregon allow recall 94. California Constitution Revision Commission, proponents to initiate recall proceedings against Article XXIII, Recall, p. 42, see endnote 33. a member of the legislature either five or ten 95. California Constitution Revision Commission, days after beginning of the first legislative session Article XXIII, Recall, p. 42, see endnote 33. after their election. 96. David Carrillo, see endnote 5. 88. Alaska, Colorado, Georgia, Louisiana, Michigan (for office-holders whose term is 2 years or less), 97. Bill Jones, see endnote 2. and Minnesota. 98. California Constitution Revision Commission, 89. New Jersey and Washington. Article XXIII, Recall, p. 30, see endnote 33. 90. California Constitution Revision Commission, 99. Elections Code § 11381. Proposed Revision, p. 45, see endnote 80. 100. Elections Code § 8000 (a); Opinion of Justices 91. Jay Gould, Report on Materials of Constitution Baxter, Werdegar, Chin, and Brown in Burton v. Revision Commission Relating to Provision Shelley, No. S117834, August 7, 2003. Retrieved in California Constitution Recommended or from: https://bit.ly/3gkOJYR. Accessed November Endorsed by Commission (Prepared for Joint 19, 2021. Rules Commission of the California Legislature, December 10, 1974), p. 124. California 101. Elections Code § 8300 and 8400. The Constitution Revision Commission, Proposed independent nomination process remains in Revision, p. 45, see endnote 80. California effect for partisan, party-nominated offices. Constitution Revision Commission, Report of the Drafting Committee on Article XXIII (Recall) 102. Opinion of Justices Baxter, Werdegar, Chin, and (November, 1969), p. 5, in California Constitution Brown in Burton v. Shelley, see endnote 100. Revision Commission, Reports of the Drafting Committee (1969-70). 103. Opinion of Chief Justice George in Burton v. Shelley, No. S117834, August 7, 2003. Retrieved 92. AB 1700 (1975). California Legislature, Summary from: https://bit.ly/3gkOJYR. Accessed November Digest of Statutes Enacted and Resolutions 19, 2021. (Including Proposed Constitutional Amendments) Adopted in 1975 and 1969-1975 Statutory Record 104. Shirley Weber, see endnote 79. (1975), p. 234. 105. Elections Code § 11381 (a). 93. AB 1278 (1977). California Legislature, Summary 106. Scholars suggest that, in practice, the recall Digest of Statutes Enacted and Resolutions generally has limited impact on the quality of (Including Proposed Constitutional Amendments) representative government, but further conclude Adopted in 1977 and 1969-1975 Statutory Record that it “can instruct a legislative body or other (1977), p. 313; Statutes of California and Digests of officials about the changing mood of the citizenry Measures, 1977 (1977), Vol. 2, p. 3653. Restrictions and can be a constructive form of a vote of no on the timing of when recalls may be attempted confidence,” and can be “a positive device that against local officials are now contained in reminds elected officials they are temporary Elections Code § 11007. REFORMING THE RECALL | 47 agents of the public they must serve.” See Cronin, Direct Democracy, p. 155, see endnote 6. 107. Shirley Weber, see endnote 79. 108. Baldassare, “After the Recall, More Californians Want Changes to the Process,” see endnote 37. 109. SCA 3 (Allen), Introduced December 7, 2020, https://leginfo.legislature.ca.gov/faces/ billTextClient.xhtml?bill_id=202120220SCA3. Accessed October 6, 2021. 48 | LITTLE HOOVER COMMISSION Little Hoover Commission Members CHAIRMAN PEDRO NAVA | Santa Barbara BILL EMMERSON | Redlands Appointed to the Commission by Speaker of the Assembly Appointed to the Commission by Governor Edmund G. John Pérez in April 2013 and reappointed by Speaker Brown Jr. in December 2018. Former senior vice president of the Assembly Anthony Rendon in 2017 and again of state relations and advocacy at the California Hospital in 2021. Government relations advisor. Former State Association, State Senator from 2010 to 2013, State Assemblymember from 2004 to 2010, civil litigator, Assemblymember from 2004 to 2010, and orthodonist. deputy district attorney and member of the state Coastal Commission. Elected chair of the Commission in March GIL GARCETTI | Los Angeles 2014. Appointed to the Commission by Governor Gavin Newsom in November 2021. Professional photographer and author VICE CHAIRMAN SEAN VARNER | Riverside of ten books. Former Los Angeles County District Attorney, Appointed to the Commission by Governor Edmund G. teaching Fellow at Harvard University’s Kennedy School, Brown Jr. in April 2016 and reappointed in January 2018. and president of the California Science Center Foundation’s Managing partner at Varner & Brandt LLP where he Board of Trustees. practices as a transactional attorney focusing on mergers and acquisitions, finance, real estate, and general counsel SEN. DAVE MIN | Irvine work. Elected vice chair of the Commission in March 2017. Appointed to the Commission by the Senate Rules Committee in September 2021. Elected in November 2020 DION ARONER | Berkeley to represent the 37th Senate District. Represents Anaheim Appointed to the Commission by the Senate Rules Hills, Costa Mesa, Huntington Beach, Irvine, Laguna Beach, Committee in April 2019. Partner for Aroner, Jewel, and Laguna Woods, Lake Forest, Newport Beach, Orange, Ellis. Former State Assemblymember from 1996 to 2002, Tustin, and Villa Park. chief of staff for Assemblymember Tom Bates, social worker for Alameda County, and the first female president SEN. JIM NIELSEN | Gerber of Service Employees International Union 535. Appointed to the Commission by the Senate Rules Committee in March 2019. Elected in January 2013 to DAVID BEIER | San Francisco represent the 4th Senate District. Represents Chico, Oroville, Appointed to the Commission by Governor Edmund G. Paradise, Red Bluff, Yuba City, and surrounding areas. Brown Jr. in June 2014 and reappointed in January 2018. Managing director of Bay City Capital. Former senior officer CATHY SCHWAMBERGER | Calistoga of Genentech and Amgen, and counsel to the U.S. House of Appointed to the Commission by the Senate Rules Representatives Committee on the Judiciary. Committee in April 2018 and reappointed in January 2019. Retired associate general counsel for State Farm Mutual ASM. TASHA BOERNER HORVATH | Encinitas Automobile Insurance Company. Former board member Appointed to the Commission by Speaker of the Assembly of the Civil Justice Association of California and the Capital Anthony Rendon in October 2021. Elected in November Political Action Committee. 2018 to represent the 76th Assembly District. Represents Camp Pendleton, Oceanside, Vista, Carlsbad, and Encinitas. JANNA SIDLEY | Los Angeles Appointed to the Commission by Governor Edmund CYNTHIA BUIZA | Los Angeles G. Brown Jr. in April 2016 and reappointed in February Appointed to the Commission by Speaker of the Assembly 2020. General counsel at the Port of Los Angeles since Anthony Rendon in October 2018. Executive director of the 2013. Former deputy city attorney at the Los Angeles City California Immigrant Policy Center. Former policy director Attorney’s Office from 2003 to 2013. for the American Civil Liberties Union, San Diego, and policy and advocacy director at the Coalition for Humane Full biographies are available on the Commission’s Immigrant Rights of Los Angeles. website at www.lhc.ca.gov. ASM. PHILLIP CHEN | Yorba Linda Appointed to the Commission by Speaker of the Assembly Anthony Rendon in October 2021. Elected in November 2016 to represent 55th District. Represents portions of Los Angeles, Orange and San Bernardino counties and the cities of Brea, Chino Hills, Diamond Bar, La Habra, Industry, Placentia, Rowland Heights, Walnut, West Covina and Yorba Linda. REFORMING THE RECALL | 49 “DEMOCRACY ITSELF IS A PROCESS OF CHANGE, AND SATISFACTION AND COMPLACENCY ARE ENEMIES OF GOOD GOVERNMENT.” By Governor Edmund G. “Pat” Brown, addressing the inaugural meeting of the Little Hoover Commission, April 24,1962, Sacramento, California Milton Marks Commission on California State Government Organization and Economy www.lhc.ca.gov