What to Expect When You're Expecting a Recall: Santa Clara Judicial Division

The recall of Santa Clara Superior Court Judge Aaron Persky is an historic one – the first in the country since 1982 and the first in California since Herbert Hoover was in office.  Persky is targeted over his sentencing of Stanford University swimmer Brock Turner to a six month jail term for sexual assault.

Petitioners, led by Stanford University Professor Michele Dauber, handed in close to 95,000 signatures. The Registrar used a random sampling method and showed that the recall would make the ballot, so unlike many other recalls, there is no fully verified number of signatures.

The Persky recall is the first in the country against a judge since Wisconsin Judge William Reinecke in 1982 (he survived the vote). The last successful one was in 1977 (also in Wisconsin against Archie Simonson). Both of those were also directly related to sexual assault issues. Those two judges made disparaging comments about victims from the bench, leading to a firestorm of criticism.

 In 2016, there was a recall against a Wheeler County Judge, though that seemed to really be an executive position more than a judicial one. Nevada had an attempted recall of judge in 2015 that was thrown out and declared unconstitutional by the Nevada Supreme Court in 2017.

The last recalls of a Judge in California took place in 1932 against Los Angeles Superior Court Judges John L. Fleming, Dailey S. Stafford and Walter Guerin. All three were removed. There were only a few before then, notably one in 1913 that was over similar leniency in sex crimes. (Leniency in sex crimes is a common factor in many threatened recalls of judges -- here's one in Orange County and another in Montana).

Note that there are many retention elections that are incorrectly described as recalls -- most notably California Supreme Court Chief Justice Rose Bird, Cruz Reynoso and Joseph Grodin in 1986 and three Supreme Court members in Iowa.
History of the recall against Judges

Using the recall against a judge has always been controversial. California's recall law almost floundered over this issue back in 1911. Though the California courts were seen as in the tight grip of the "octopus" grip of the Southern Pacific (the powerful institution that was seen as the most important political and economic player in the state), many legislators were opposed to putting judges under the recall law. News accounts of the day suggested that the legislator were seriously considering exempting judges for the recall law, but  a late-breaking state Supreme Court scandal, where the court ordered a rehearing of the sentences of the political leaders in a scandal in San Francisco (with one of the judge's signing the decision without considering the filed briefs) turned the tide.

On the national level, President William Howard Taft vetoed the Arizona constitution over a recall of judges’ provision and the recall of judges and something called the recall of judicial decisions (an idea that seems to have died by 1930) was one of the key flash points in the Taft- Theodore Roosevelt split in 1912.

As it is, six states appear to carve out an exemption for judges in their recall law.

Also, just to define our terms: I call this subject the recall of a judge, rather than judicial recall. In the history and the literature the term Judicial Recall refers to something totally different (what I call the malfeasance standard or for cause recalls). A judicial recall occurs in states and jurisdictions where a judge is required to rule on whether a recall meets a specific standard to get on the ballot. Essentially, the official has to have violated the law or shown demonstrable incompetence for the recall to be placed on the ballot. It has nothing to do with removing judges. I keep this divide up so as not to confuse people who may be conversant or studying the literature. T

In addition to getting all those signatures, petitioners overcame California’s grace period. California law does not allow a recall in the last six months of a term unless the official is appointed or in the first three months of a new term. Persky won reelection in November 2016 and petitioners had to wait out a delay before they were allowed to begin gathering signatures.

How the Recall Works:

California’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 mimics this exact process is Colorado.

Under California law, Persky cannot run in the replacement race. There are two candidates who are running as replacements: Santa Clara Assistant District Attorney Cindy Seeley Hendrickson (who has the endorsement of Dauber) and attorney Angela Storey, who opposed the recall.