Friday, August 16, 2013

San Diego's recall law is a disaster, one of the worst globally, and should be tossed out in favor of the state law

I previously wrote this op-ed for the San Diego Union Tribune on the difficulty of the city's recall law, and I talked to this reporter for her story, but I wanted to provide a more expansive look at the problems in the San Diego recall law as a whole. I'd love to hear if people think I'm wrong or have other examples. But after looking at the law, and after a wave of embarrassing stories, I believe that the San Diego recall law is a disaster, and it many ways it ranks among the worst recall laws in the country, if not the globe.

San Diego's is not the strictest or most difficult recall law in the country, and others have undeniably worse provisions, but its possesses multiple unforced errors which seem to exist solely to stop recall efforts. What makes this particularly hard to swallow is that unlike other jurisdictions, San Diego should have a perfectly fine recall law. I'm a big believer in Hanlon's Razor so I will take the position that this is just bad legislating, but you could see why people (such as one of the comment on the Union Tribune article) claim that this botched law could be an intentional effort to subvert the use of the recall. It is certainly not unheard of -- a look north at Berkeley (a city less than a 10th the size of San Diego) shows that it may have changed its laws specifically to subvert the use of recalls.

Let's look at some of the disastrous provisions in the law:

1) First problem is that the city cuts the signature gathering time-frame to only 39 or 69 days, (which I'll get to soon). I'm unaware of any jurisdiction in the country that has a 39 day time limit. There are jurisdictions with 30 days, but the 39 is very odd. It appears that the provision was botched in drafting. The law gives 60 days for the initial signature gathering stage, but then holds carves out the first 21 days for notices and responses, during which time petitioners cannot gather signatures. A notice is not unusual, but what is unusual is for it to cut so deeply into the mandated 60 days for signature. So, all of a sudden, there is only 39 days to gather for the initial stage. Compare that to other cities in California -- Los Angeles, which allows for 120 days; San Jose, San Francisco, Sacramento, Oakland and all of the top 10 cities in California use the state law provision, which allows for 160 days. (I noted Berkeley earlier. They have 75 days). This radically cuts down on the possibility of a successful recall effort.

2) The law seems to provide an additional 30 days (on top of the 39 days) to file supplemental petitions if there are not enough signatures handed in. There are provision like this in a few other jurisdictions, but note the L.A.'s law, which mandates that the supplement be filed with the 120 day time frame. Other seems to allow just curing of the already submitted petitions. Was this another mistake in drafting? This provision doesn't seem bad, but will it kill the recall momentum? Could it result in mistakes in gathering signatures in the verification stage (between the signatures are handed in and when the clerk declares that the petitioners failed to meet the limit)?

3) San Diego sets a high signature total bar (though it is the same as L.A.). San Diego requires 15% of registered voters. If they followed straight California law, it would be 10%. San Jose requires 12% and San Francisco and all the other top ten California cities require 10% (for citywide office). That said, 15% is not unconscionably high. There is no exact science to it, and 15% is within the range of normal (just high for California). But when tied with the other problems, it certainly looks bad (The aforementioned Berkeley needs 25%).

Just as a comparison, Miami-Dade County, a jurisdiction of 3.5 million people that had a mayoral recall in 2011, required only 4%.

4) Maybe the oddest provisions is the caused by the use of the term "recall petition filed." The use of this term causes two problems. Here's the language
According to the City Attorney, filed means that the recall election was approved. It does not refer to petitions that failed to get enough signatures. But the language is poorly written. A similar state law doesn't mention petitions filed. It just refers to "an officer who is not recalled." In Wisconsin, they write: "after one such petition and recall election..." Oregon says "after one such petition and special election..."

There are a plenty of places that prevent an official from facing multiple recalls in their term or mandate a cooling off period of six months after a recall (according to the early history of the recall, this provision started in Berkeley). But that is an actual elections, not petitions. If the City Attorney's interpretation is not accepted by courts, this law would incentivize the targeted official to have supporters take out the petitions. During the first discussion on the recall, there was allegations that this is exactly what a Filner supporter had done.

The second issue is whether the law allows only one petition to be filed and, if it allows multiple petitions, whether the first recall petition filed starts the 39 or 69 day clock on the recall for all recalls. Once that original petition is filed, all other petitioners have to start collect, whether they are ready or not. According to this reading, if that original petition failed by day 39 or 69, then (under the most expansive reading) the targeted official can't face a new recall petition for 6 months. The San Diego County Attorney has claimed that this reading of this law is incorrect (holding that filed would mean submitted with enough signatures to get on the ballot), and I would imagine that their position would be upheld in court. But  as we will discuss below, that doesn't prevent this issue from being problematic for petitioners.

You may recall that in Wisconsin, a Scott Walker supporter filed the first petition. But that didn't start the countdown -- it just allowed Walker to raising unlimited funds. In other places, multiple petitions are out there (this happened in Oakland). But one petition's time limit doesn't block the other from working.

5) There is also a provision that states that voters cannot cast a ballot for a replacement candidate if they did not vote in the recall portion of the race in the first place. This provision is almost certainly unconstitutional (based on a similar ruling in the Gray Davis recall). However, it still will take efforts (both time and money from the recall supporters) to get it tossed out.

These different problems all represent roadblocks for San Diego voters. Some, like the 39/69 day time frame or the 15% signature requirement create extremely difficult practical hurdles, but no legal issues. Others, like the multiple petition problem may be easily overturned in a court challenges, but that itself is a very big problem. Being forced to seek lawsuits delays the recall and forces petitioners to spend money the litigation. This may seem like a small point, especially when you see millions thrown around in Wisconsin or during the Gray Davis recall. It probably will not be a problem against Filner -- somebody will put up the money. But most recalls are undertaken by citizens who don't have the time, money or the legal skills to challenge the law. This gives the elected official a very powerful tactical weapon -- he or she just files suits (with their legal expenses sometimes paid by the taxpayer) under the different questionable provisions. Frequently enough, the petitioners give up. Under these circumstances, The recall law becomes a shield for elected officials, rather than a sword for voters.

All this being said, why do I put San Diego at the bottom of the recall pile? After all, if you look at the recall laws in other jurisdictions, you will see a variety of difficult provisions. Some have a malfeasance (or judicial recall) standard, where most issue-based recalls are not allowed. Some have a tight timeframe -- as little as 30 days to gather the signatures. Some require a difficult two-step signature process. Still others have a very high signature bar for recalls (Louisiana requires 1/3 of registered voters to sign a petition -- an almost impossible number for a gubernatorial recall). Others mandate that a majority of the voters cast their ballot for the recall to count. And, perhaps most punitively, there are jurisdictions that require the petitioners to pay the cost of the recall.

But in all of those jurisdictions, the limitations were built into the law adopting the recall in the first place. San Diego is different.While San Diego originally adopted the recall in 1905, they can't get rid of it. If they tried to, California law would governed. Earlier versions of the law followed California law (see the linked 1931 charter). But at some point, legislators chose to write a terrible law that strictly proscribes the recall. Voters in San Diego probably assumed that the recall is as easy to use as the ones in LA or SF. Now that they can use the recall, they found out they were wrong.

The worst part, and the part that may make San Diego unique, is that if it didn't have a specific law, the city would be governed by the state's law on local recalls. California's law, which provides gradation based on jurisdictional size when calculating how may signatures are needed, is the law I suggest to other officials when their state is looking for a recall law. If San Diego had that law, petitioners would have to get 10% of signatures in 160 days. They would also not have to worry about the continual minefields that keep popping up to prevent a recall from taking place.

What the city should do is not try to patch up an ungodly mess of a law (though some of the ideas are perfectly reasonable). We've seen in other states that voters should be very wary of politicians trying to make changes to the recall law under the guise of reform. Instead, the city council should junk the whole thing and adopt a provision like the one used in Oakland that accepts the state law for recalls.

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