Tuesday, September 3, 2013

A. Lawyers, Guns and Money -- Q. What to Expect When You're Expecting a Recall: Colorado State Senate edition

On September 10th, Colorado will be holding its first ever state-level recalls against two Democratic state Senators, Senate President John Morse and Angela Giron, for their support for gun control legislation. Petitioners actually went after two other legislators and discussed recalling the Governor, but they failed to turn in petitions for those officials.

In many ways, these recalls are different than most famous recalls of recent years against Wisconsin Governor Scott Walker and California Governor Gray Davis in that the primary goal here is symbolic. These recalls will not result in Republicans gaining control of the Senate (absent a Democratic Senator flipping parties). Morse is term-limited and out of office in 2014. Democrats are not actively looking to draft new gun control laws, and since the Democrats control the House and the Governor's office, the laws will likely not be revoked until a new full election.

This recall is also what I would call a single-issue/interest group recall, which have their own history (I think in many ways the Walker recall can also be defined under this category) Yet, symbolic and interest group recalls can be very powerful, sending a message to other politicians not to mess with that specific issue. A look back at California in 1994 shows one example that the recall backers are certainly hoping will repeat.

The recall is also noteworthy because Colorado has become a purple state, one that may be deciding presidential elections in the future. Morse almost lost his race in 2010, and so his seat (caveats about how redistricting might affect this argument way below) may be a particularly good test of strength for the two parties and especially for how the issue of gun control/gun rights plays in the upcoming election. The Wisconsin recall did not seem to have any impact on 2012 -- will it matter in 2014 and beyond or was it just a one time event? We can only be certain that both sides will try to spin the recall results to their own benefit.

The recalls have seen a massive amount of litigation, over issues such as whether an all mail-in ballot campaign may be used; the time that minor parties can use to get on the ballot; whether one part is unconstitutional. We are also, not surprisingly, seeing a lot of money being dropped into the race. And we've seen possibly cutting edge technology used to possibly reshape the way election are run (especially recalls and other ballot initiatives) going forward.

We'll get to all of these issue and others in our extensive look at the recall below. I probably will add some further blog posts to this over the coming week. Some of these posts (especially at the end) are taken directly from past round-ups I've written on the Wisconsin/Arizona/Michigan state level recalls. No apologies for the size or the repetition, so kick back, and in honor of his providing us with the perfect headline for the recall, fire up your favorite Warren Zevon album and let's go:

The Recall Explosion: I was in the House When the House Burned Down:

The Morse and Giron recalls represent the 37th and 38th recalls of state legislators in US History (that we know of). The success breakdown is a clean 18-18 -- though Wisconsin really skews the numbers as only 3 of the 13 legislators targeted lost their seats (though I count this resignation in the survived a recall column, as the Republicans easily took the seat).

Most of these recalls have taken place in recent years -- only five were before 1971, and 20 will have taken place since 2003 (plus two of the four gubernatorial -- if we count Arizona's Evan Meacham in 1988-- recalls to get to the ballot). Over the last two years, we've seen what is thought to be a possible nationwide surge in recalls on the local levels as well (since we don't have any great numbers from pre-2011, it's impossible to make any real determination). I've tracked 151 recalls in 2011, and 168 in 2012.

What explains the explosion? Many cite increased partisanship. I am skeptical of that explanation, and have argued that technological innovations (and possibly a drop in voter turnout and registration) are really responsible for the lion's share of the growth. See here for more thoughts:

Carbon Copy:
A term-limited Democratic state Senate leader in a swing district is facing a recall over his support for gun control. Have we heard this story before? Indeed we have. In 1994, California Senate President Pro Tempore David Roberti faced a recall under those exact same circumstances. Roberti survived his recall vote, though gun rights groups have to look back fondly at that time period. Rather than rehash my whole article from the Atlantic, you can go to the link.

Colorado Recall's Dirty Life and Times -- the recent use of recall in the state
Colorado was among a group of states that adopted the recall for use against state level officials back in 1912 (four other states adopted the law that year, two states had adopted it in the years before 1912). The most interesting feature of the Colorado recall, a law that allowed the recall of judicial decisions, was ruled unconstitutional in 1930. 

The state has not been among the most prominent users of the recall, and unsurprisingly, there has been very little written on the subject. Colorado also has a surprising track record. The recall is known for being very successful once it gets on the ballot, with a better than 50% chance of kicking the official out -- for example, in 2012, there were 168 recalls, resulting in 82 removals and 26 resignations. However, in Colorado, officials seem to survive the recall vote. Here''s what we've seen occur in Colorado over the last three years:

In 2011, 12 officials faced the recall (two of whom resigned). Eight of the officials and two were removed.

In 2012, 10 recalls (two resignations); Six of the officials survived and two were removed.

2013 has been a strange year. So, far there have been 11 recalls -- three resignations, four officials survived recall votes (all in one race). One other official (a school board member) lost a recall vote. The other three recalls, involving the Center Mayor and two trustees of are in a state of flux, with a big lawsuit over the balloting heading up to the Supreme Court. The Aspen Center and Marilyn Marks, who has been very involved in some of the process issues in the Morse and Giron recalls, is also right in the middle of the Center recall problem.

Mr. Bad Example

Colorado has not had famous recall in the past. In fact, the most recent book on recalls (from 1998) cites none from the state. I'll propose that the most famous recalls prior to this year are either the Saguache County Clerk, the School Board member who resigned and was later arrested for sexting with a student or the official who refused to stand for the Pledge of Allegiance.

Other States
18 states have the recall for state level officials (plus Illinois has it just for governors and Virginia has something called a recall trial). Of those 18 states, 9 have held state-level office recalls. There is a very significant breakdown between those states. 11 of the states have a political recall (an official can be recalled for any reason); 7 have a judicial recall or malfeasance standard (the official must have violated one of a specified list of causes, such as being indicted).

Of the nine states that have held state level recalls, eight of them have been political recall states (California, Wisconsin, Michigan, Oregon, Arizona, Idaho, North Dakota, Colorado). The only recall on the state level in a malfeasance standard state was in Washington in 1981 (the malfeasance was switching parties -- the official survived).

You have selected Regicide: Legislative leaders edition

John Morse is the fifth state legislative leader to face a recall vote. The first was California Senate President Pro Tempore David Roberti in 1994. The second was Michigan House Speaker Andy Dillon in 2008. The fourth was Wisconsin Senate Majority Leader Scott Fitzgerald. All three of these officials won their races easily.

The third, and only loser, was Arizona Majority Leader Russell Pearce who was kicked out of office on November 2011 in a bitter recall battle over immigration and other issues. Perhaps worth noting is that Pearce lost to a Republican.

There was one other recall of a legislative leader, though the circumstances were so bizarre that it has to be separated out. Without going into too much details about the California recall wars of 1995, Republican Doris Allen backed the Democrats in a closely divided Assembly that had already seen two recall votes. Allen was elected Speaker of the Assembly and served for a little over 3 months, but she stepped down before her recall. She lost her recall race.

Multi-officials recalls:

Multiple officials facing recalls in one election are a common occurrence. As you see in this link, these recalls frequently result in a clean sweep, one way or the other (either all of the officials surviving the recall or all being removed).

On the state level, we've seen multi-official recalls happen numerous times in the past -- North Dakota (1921) Idaho (1971), Michigan (1983) and Wisconsin (2011, 2012). Additionally, California had three recalls in 1995, though all were on different days. In North Dakota, Idaho and Michigan, the officials were all kicked out of office. In Wisconsin, while the explanation is a little more complex, there was a splits in both 2011 and 2012.

Headless Thompson Gunners and other gun control focused recalls:

There have been at least two other gun control recalls. One is the aforementioned David Roberti recall. The other was one of the most famous recalls in history, against then-San Francisco Mayor Dianne Feinstein in 1983. San Francisco had passed a handgun ban (which was struck down by the State Supreme Court). A militant communist group called the White Panthers were also big gun rights supporters and quickly collected enough signatures to get a recall on the ballot. There was a moment when the recall became a "kitchen sink" event, where disparate groups who disliked Feinstein glommed on to try and kick her out. Then, it collapsed. Feinstein won with 81.5% of the vote, which helped propel her career -- the next year, she was talked up for the Vice Presidency (though we shouldn't overstate the recall's impact -- it was more ).

There is one current recall that has touched on gun control, but more as a bizarre tactic. Sunnyside, Arizona School Board Member Daniel Hernandez Jr. is facing recall petitions. Hernandez is credited with helping to save Representative Gabby Giffords (he was her intern). The recall threat (doesn't look like there's much hope of it getting on the ballot) has actually been brought by two other members of the board who are facing recalls over their own support for an embattled and ethically challenged school superintendent. However, there have been flyers attacking Hernandez's for his support for gun control (and the fact that he is gay). So, not really a gun control recall, just a tactic to attack Hernandez.

For My Next Trick I'll Need a Volunteer -- Turnout and recalls
The recalls were supposed to fall under a new law allowing an all mail-in ballot election. However, due to a drafting failure (not uncommon when discussing a recall), the new law failed to consider the specifics of recall law. The law had a 10 day limit for replacement candidates to get on the ballot. Colorado's Constitution required a 15 day limit for recalls. The result was the mail-in ballots were tossed out. The Supreme Court refused to hear the appeal (3-3 vote). And the mail-in ballots are not being used.

Stories have suggested this development benefits Republicans, which makes sense as I've long argued that recall proponents have an advantage in a recall (especially a special election one) because of the turnout issue. There is usually only one race on the ballot and you have to know about and care about the race (which is one of the reasons that the recall proponents have an advantage in the recall). In 1994, the three California Assembly recalls saw 20 to 25% turnout, with similar numbers in Michigan in 1983.

However, the most prominent recalls can see a boost. The Gray Davis recall saw a much higher voter turnout number than in the general election. Same thing with Scott Walker last year.

Turnout is always a popular issue for campaigns. When you think about it, turnout is one of the only tactics that they have real control over. In this case, with Morse coming from a very evenly split district, it can be a difference maker.

Give me Two Steps:

Colorado's recall is what I call a two-step/same-day recall vote -- voters cast one ballot which has two parts: step one is the question (not using the literal language) of "Should this official be recalled?" and step two is "Who should be named as a replacement?" The only state that has this exact process is California. This hybrid process is important for two reasons. One is the question of whether the recall itself (the first vote) is actually an election or an issue campaign. There is a difference in how money may be spent by parties if it is an issue campaign. We've actually seen one complaint against the replacement candidate for Morse because he was running ads calling for Morse to be recalled.

The second point, which ended up before the Colorado Supreme Court, was that Colorado's Constitution very clearly stated that if you don't vote on the recall question, any second vote is tossed out and doesn't count. This same question came up in California in 2003. A Federal Court ruled it unconstitutional (under the 1st and 14th amendments). In a 5-2 decision, the Colorado Supreme Court apparently followed the same logic (though we haven't seen the full written decision). The slightly humorous aside is that the since there is only one replacement candidate in each race, there is a very small likelihood that the undervote could matter.

And playing the Role of the Koch Brothers tonight is.... 

Money is always critical in a recall -- frequently, recalls are the most expensive legislative or gubernatorial races in the state's history -- we saw this in Wisconsin both in 2011 and 2012, and we saw this before in Washington in 1981.  I haven't been able to figure out the record for a Colorado state legislative election (paging the top-notch team of Colorado reporters!), but we are already seeing a lot of money spent on the two recalls. NYC Mayor Michael Bloomberg has stepped in to the Koch Brothers' shoes and been the focus of the ire of the recall proponents. He has put in $350,000, and much like with the Koch Brothers in Wisconsin, his role is arguably grossly overstated for political benefit (not to say that both Koch Brothers and Bloomberg aren't key players, just that the size of their role in the election is overplayed, especially as other big money donors who were ignored).

Billionaire Eli Broad has thrown down a cool quarter of a million. In 2010, Morse and his opponent spent a combined $281K, and Giron and her opponents spent $131K, so we are well past those figures.

The recall proponent aisle may be a bit more nebulous and tough to figure out. So far, we have heard that the the NRA has chipped in $103K. I've heard from reporters (and keep in mind, this is unproven third party gossip), that the recall proponents are spending most of their money from 501(c)(4) (aka dark money) groups and may not be easily trackable. This may be due to the the fact that the recall is an issue campaign, and not considered under the same rules general election.. So it is not clear that we will have any good accounting on the pro-recall side. Since this is an issue campaign, the amount of money raised by the Republican candidates does not tell any tale.

Single Issue recalls:
One of the questions that this blog keeps going back to is whether there is an advantage if the perception of who is launching the recall. It is frequently not a clear cut answer as to who is responsible for the recall (the proponents always want the recall to be seen as a independent citizen's initiative, the target always tries to portray the recall as a nefarious plot, either by a sore loser, the other party or monied interests). However, I would say that when the recalls most likely to fail are those launched by a perceived single interest group. We've seen labor unions launch recalls (in Wisconsin and in California in 1913). We've seen gun control groups push recalls. And we've seen them all fail at a higher rate than usual.

In reaction to this reality, we've seen an attempt (by both sides) to expand the scope of the recall question beyond gun rights. Giron has focused on abortion (and the strong anti-abortion record of her potential replacements). Others have hit on Obamacare or renewable energy. But this does seem to be a very specific interest group recall (the interest group being gun rights supporters, not just the NRA or a specific group). Will see if the possible pattern holds up.

Dogs that Didn't Bark:

There were three potentially critical legal challenges that could have reshaped or killed at least one of the recalls.

1) Both Morse and Giron last faced election in 2010, before the last round of redistricting. Yet (I believe) that these recall are being held before the voters for the newly redistricted seats, not the group of voters who elected Morse and Giron (I actually don't see anything that says which districts are being used, but the argument can be used both ways). This was an issue in Wisconsin, where it was ruled that the recall must use the previous seats (though Wisconsin had just passed a law mandating that ruling). I haven't seen any discussion of the pros and cons, but I have to imagine that the choice of pre v. post redistricting could have had a real impact on the results. In a litigation-filled recall effort, I'm not sure why this particular issue fell off the radar.

2) Petitioners handed in more than double needed to get the Morse recall on the ballot. 37.5% of those signatures were tossed out (which is fairly standard % in Colorado). However, the Giron recall had only a little 20% more signatures than needed. But the review showed a fantastic showing by petitioners -- only 6% were tossed out. This number is extremely low by any state's standards (15% is good number to use) and especially by Colorado's which appears to take a stricter signature standard than say California (Wisconsin law is very different). Petitioners have stated that they used the newest technology to ensure clean and correct gathering and the fact that it wasn't challenged certainly provides strong support for this position. It still seems surprising that Giron didn't try to challenge the petitions.

3) As with almost all recalls, Both Morse and Giron had the option of resigning in the first five days after the recall was fully certified (and presumably agreed to by the court). What makes Colorado's law odd and made this a real possibility is that they would have had to be replaced by fellow Democrats. It seems that a resignation would have been a win from a pro-recall point of view, and both officials obviously declined the option.

The Mutineers:
Despite numerous potential candidates for the races -- from a pro-gun Democrats to the Libertarian candidates whose lawsuits killed the mail-in ballots to an erotic novelist, the only candidates in the replacement race are two Republicans backed by the party. The Democrats have taken the route that Gray Davis wanted --vote against or the other side wins. It will be interesting to see whether there is any serious write-in campaign.

Party Line -- Is one party more likely to use recalls?
I constantly get asked about the party breakdowns of the recall. Most of the recalls are on the local level, where the position is elected on a nonpartisan basis. When there is a partisan position, the party label is frequently a misleading method to judge recall use, as many are not based on D v. R partisan motivations. Sometimes Republicans recall Republicans, and Democrats recall Democrats.

However, you would see both parties are not shy about using recalls (for example of the 14 state legislative recalls from 1981-2008, most were launched against Democrats, and ethics played very little role in those recalls). Democrats have launched the majority of the recalls last year on the state level, which makes sense as the lost power in 2010.

Republicans or their backers have not been shy about using the recall for partisan gain (for example, Michigan, 1983, California, 1994, 1995 and 2003). Same thing with Democrats (Wisconsin, 2008 California). So, which party is most likely to launch a recall? Simple -- the one that is not in office.

Blowouts v. Barnburners:
I wouldn't expect a blowout, but throughout history recalls have tended that way. Here's a look at some of the history of blowouts and some close races.

Man is opposed to fair play, he wants it all, and he wants it his way: The inevitable post-recall reform act

We have heard, and will continue to hear complaints about the unfair use of the recall. But these complaints can generally be dismissed out of hand. Why? There have been a number of principled opponents of the recall. Alexander Hamilton and William Howard Taft lead the pack in US history with their great dislike for the recall. Among modern commentators, the only one that I can think of is George Will. But they are few and far between.

Similarly, after major recalls, the first action by the recall opponents is to propose a reform to the law. Wisconsin has tried to do it. In 2011, Arizona tried to add a recall primary and other changes, and has has put a law on the books mandating strict construction of the law. Michigan actually changed its law following the successful Paul Scott recall in 2011 and has probably cut down on the amount of recalls in the state. Others have done same after a recall loss.

These changes rarely involve going to the voters (I know of one example on the local level of such a change being passed by voters). Polls keep showing complaints about the recall, but they are not born out by the results. In Wisconsin, one poll showed 70% of the voters opposed to the recall (60% wanted it used for corruption/malfeasance only; 10% thought it should never be used). Yet, despite that about 47% of the voters cast a ballot to toss Walker out.

We had a similar poll in Colorado, where almost 60% of voters opposed the use of the recall against Morse and Giron. The breakdown of the polls were very illuminating -- Republicans were much more in favor (62% for Morse; 47% for anyone for political reasons) of the recall than Democrats. The reality is that support or opposition to the recall depends heavily on whether it is an official from your favored party facing the voters.

Most of the people who complain about the recall are just really complaining about the recall being used against their side. In the past, Scott Walker signed petitions seeking policy-focused recalls. Bill Clinton was certainly not supporting the Gray Davis recall.

You want to know if somebody has a principled position on the recall? Look back at their positions on both the Gray Davis and Scott Walker ones. See if there is any consistency. What you will likely find is that the person just didn't want their candidate to lose, and they're hoping you either agree or just don't look into it.

Recall Survivors: Risin' up, straight to the top?
Surviving a recall can boost a career. Scott Walker survived and is now a major national figure being talked about in 2016. Dianne Feinstein won the San Francisco Mayoral recall against her in 1983. By 1984 she was being talked about for the VP and was the US Senator by 1992. California State Senator Jeff Denham survived a recall in 2008, and was then elected to Congress. Also, for what it's worth, filmmaker Michael Moore survived a recall before his career took off.

How a Resurrection Really Feels
Is a recall loss the end of a career? Not always. The most obvious example is North Dakota Governor Lynn Frazier was the first Governor to be recalled back in 1921. He was elected to the first of the three US Senate terms 18 months later. Seattle Mayor Hiram Gill lost a recall in 1914 and was back in office the following term. We also have recent examples: Quartzsite's mayor Ed Foster was kicked out last year in a high profile recall campaign. He retook the office this month (from the man who defeated him in the recall).

No future, no future for you?
Another big question that I'm constantly asked: Will we see a cycle of recall revenge? I remember similar questions after Gray Davis was recalled, and in fact this has been a constant warning cry of recall opponents since the recall was first adopted over a century ago.

Now, there have been examples of repeated recall fights. A county in Michigan has had 340 recall threats filed in 20 years. In Alliance, Nebraska;in 1987-88, there were two mayors recalled in 37 days, and then the replacement (for the $575 a year job) faced a third recall threat. But there aren't too many of them out there, and certainly none on the state level (I don't consider the 1995 California fight to rank).

However, I think we will see the recall continue to expand, as voters realize that "hey, I can use that thing" and try to take out vulnerable incumbents on their own (or with party or interest group backing). The recall is finally having its moment in the sun, and it doesn't look like it wants to relinquish the spotlight so quickly.


  1. Hi there,

    I am currently writing a report on recall for a British think tank looking to campaign for its implementation here (thats political recall, not judicial as being proposed by the UK government). As part of my report, I am going to have a chapter on the US, analysing its historical use and effectiveness.

    I have two questions I would really appreciate your comments on:

    1. Does recall have any effect on policy (maybe Arizona, 2011. But generally?) or is it mainly used to oust incompetent/unpopular public officials?

    2. Is it fair to conclude that recall that is single-issue led (unless the issue is big enough) tends to fail? Following this does recall have a better chance of success when there are multiple issues linked to one official?

  2. 1. Yes, it is mainly about policy. A minority of recalls (I don't know the exact breakdown, but I'd certainly say that even under the most generous definition, much less than a 1/3rd) can be clearly attributed to corruption/incompetence.

    2. No, it is not. I would say most recalls are single-issue recalls (taxes/spending/policy decision). I think it depends on the multiple issues, but sometimes those "kitchen sink" recalls are the most spectacular failures. Of course, the problem is always definition.

    Feel free to contact me by email or give me a call (I'll give you my number if you email me). I'd be happy to discuss it at greater length. As you may know, I've written on the UK recall idea for Politics.UK