Wednesday, September 28, 2011

Arizona and sham candidates -- comparing different recall set ups

Some interesting discussion by the Election Law Blogger himself, Professor Rick Hasen, focused on Olivia Cortes, the alleged sham candidate in the Russell Pearce. As I'll explain below, because of the particularities of Arizona law, I don't find the sham candidate problem that offensive.

For contrast, Hasen notes how California law works. California's law eliminates sham candidates run to protect the targeted official. It provides for two concurrent votes, one on whether to actually recall the official, and the second (non-partisan) on the replacement. The removed official cannot run in the replacement race (which I believe was the source of debate during the adoption of the recall itself).

I think this is the best system, mainly because it limits costs and provides some contrasts between the official being recalled and the possible replacement. Though not a benefit, I believe the ability to draw a contrast with a successor actually benefits the elected official -- as the official has somebody to attack rather than the potentially nebulous recall proponents.

However, there are other systems. For example, most states have a replacement vote on a separate date, which drives up the cost of the recall.

Let's look at some details and a two other jurisdictions in the news this year for contrast:

Wisconsin, which has the recall at the same time as the replacement vote, has a very partisan take on the recall. If there is more than one candidates from any party, there is a primary. The winners of each parties' primary face off in the recall. This limits the problem of sham candidates by forcing any sham candidate to a third party line. On the possibly negative side, it does empower the two political parties and on the definitely negative front, it potentially doubles the cost of the recall.

Miami-Dade, which had a recall vote against its Mayor this year, chose an even more expensive tact. First, there was a straight recall vote. This was followed by a replacement election, where the candidates needed a plurality to triumph. Since no one received a plurality, there was a run-off. This method certainly limited sham candidates, but at great expense.

Arizona's law is different. The state throws all the candidates together and holds the race on a regularly scheduled Election or Primary Day. In fact, one of the problems with the Pearce was that court challenges could have pushed it past November, which would have resulted in a March 2012 recall. This law obviously saves money. I think it also certainly helps the incumbent -- having recalls as special elections seems to benefit the challengers.

But I think Arizona's insistence on having the recall held concurrent with a regularly scheduled election transforms the recall into what seems to be a regular (albeit non-partisan) vote. There are serious negatives to this law, such as the long delay in having a recall, but it also has strong positives, such as holding down costs and potentially increasing voter turnout. Arguably, it should be held to a different standard than a typical special election-type of recall.

Arizona does increase the possibility of sham candidates siphoning off the anti-incumbent vote -- but those can and do happen in other nonpartisan general elections or (perhaps especially) in primary races.  In the Pearce case, the alleged sham candidate may be boomeranging on Pearce, as it has become a big campaign issue.

This not to say that Arizona's system is ideal and should not be changed. I like the concurrent recall, then replacement systePublish Postm (though probably costs something more in ballot printing), but it should be recognized that the Arizona's law has a different focus than other jurisdictions we looked at. Of course, we should also point out that Arizona's system hasn't protected offending officials from getting absolutely trounced in a recall vote.

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