CALIFORNIA FOCUS
FOR RELEASE: TUESDAY, OCTOBER 1, 2021, OR THEREAFTER
BY THOMAS D. ELIAS
“THE LAST RECALL OF ITS TYPE?”
Californians
would be well advised to remember well this month’s recall election aimed at
firing Gov. Gavin Newsom and replacing him with someone who drew far fewer
votes than the no side did on the ballot’s other question.
That’s
not because this was a particularly memorable campaign. It wasn’t, except for
all the errors by target Newsom and the pack of replacement candidates hounding
him. These range from a candidate abusing a bear in order to establish himself
as “beastly” to the incumbent neglecting to name his political party on the
ballot.
But this
kind of special election will likely never be repeated on a large scale in the
same format because more than 100 years after the Progressives of the early 20th
Century devised it, legal scholars finally realized the current system is
unfair and probably unconstitutional on its face.
Nevertheless,
expect the several local recall efforts now underway to continue under the old
rules.
Yes, the
lone lawsuit filed this year trying to stop the recall on legal grounds went
nowhere, largely because judges are generally loath to step into strictly
political matters.
That
alters neither the system’s obvious flaws nor the strong likelihood state
legislators will fix them, if only to make life easier for themselves if they
should someday be recalled, as happened to one current state senator, Josh
Newman of Fullerton, in 2018.
Like
Newsom, Sen. Newman was not among candidates folks could vote for at the same
time they voted yes or no on the very idea of a recall.
Two years
later, Newman came back and whipped Republican Ling Ling Chang, who led the
2018 replacement vote, by about 11,000 votes.
In that
recall election, the “no” side on the recall question got more than 66,000
votes, while Chang received a few more than 50,000. By 16,000 votes, the
district preferred Newman to Chang, but Chang got the job because, like Newsom,
Newman could not be listed among potential candidates.
It was
different in the 2003 gubernatorial recall, when then-Gov. Gray Davis got 4.07
million-plus “no” votes on the recall question, but movie muscleman Arnold
Schwarzenegger pulled more than 4.2 million to lead the replacement field.
Unlike Chang, Schwarzenegger won fairly solidly, so the constitutional issue
never came up.
It arose
this fall, first raised in high profile by Erwin Chemerinsky, dean of the UC
Berkeley law school, in a New York Times op-ed. Wrote the dean, “The most basic
principles of democracy are that the candidate who gets the most votes is
elected and that every voter gets an equal say…” That very nearly did not
happen this time.
Until
very late in the process, most polls showed the vote nearly even on the recall
itself, a “no” essentially a vote for Newsom. No replacement candidate came
near Schwarzenegger’s 2003 performance.
If the
“yes” side on the recall question had won, while the eventual replacement
winner got less votes than the “no” side on that question, that would have
meant two things: Newsom essentially would have been desired by more voters
than the figure replacing him, and a vote for Newsom counted less than a vote
for the replacement winner.
This
appears to fly in the face of the U.S. Supreme Court’s landmark one-person,
one-vote decision and even if defeated on the yes-or-no question, Newsom would
appear to have had grounds for a constitutional lawsuit seeking to stay in
office.
As
unlikely as the high court would be to accept such a case, the message is
clear:
This
system must change, especially with recall petition campaigns and elections
growing more common as time goes by and more voters feeling disgruntled and
poorly represented.
All it
would take is one small change to the current system and things would be
constitutionally hunky-dory: Place the incumbent on the candidate list. Another
potential change: Setting up a runoff vote for cases where no replacement
candidate wins a majority vote.
There’s
every reason to expect state legislators will make at least the change
inserting the recall target’s name onto the candidate list, if only to help
themselves if and when their own recall moments arrive.
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Email Thomas Elias at tdelias@aol.com. His book, "The Burzynski Breakthrough: The Most Promising Cancer Treatment and the Government’s Campaign to Squelch It," is now available in a soft cover fourth edition. For more Elias columns, go to www.californiafocus.net
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