After a bit of time, we have the final numbers in
the two big recalls of Alameda County District Attorney Pamela Price, 375,442-221-285 and
Oakland Mayor Sheng Thao, 86,535-56,220, with both ousted. Who will replace them is the big
question.
On the SOCOA Blog, I provide my thoughts on why the
law as (re-)written has opened up a surprising path that was previously banned
by California -- both Price and Thao could run in the replacement race and
Price could even be appointed to replace herself.
I want to provide some more background on the
history of how this came about and the decisions that made these two recalls so
fraught.
The starting point here should be 2017. During the
recall effort against State Senator Josh Newman, the state legislature adopted laws that I would say were specifically designed to throw up roadblocks to
getting recalls on the ballot. Some of these rules padded in months to the
process after the signatures were turned in, forced a focus on the expense of
the actual election (which seems to lead to inflated cost-projections), made it
more difficult for signature gatherers, -- including specifying font/point
size, which is not done for other signature efforts -- and (in one positive
point) allowed signers to withdraw their names from the petition.
This was not enough, though. In 2022, following the
recalls of Newman, California Governor Gavin Newsom, SF DA Boudin and three SF
school board members, the legislature passed two laws impacting the recall, AB
2582 and 2584.
The big changes with these laws is
that they tried to do away with the replacement election model for local
officials and judges (there's also a requirement that recall petitions now carry the statement from the targeted official). State officials would require a constitutional amendment --there
is an attempt to pass just such a law for Gubernatorial recalls). Presumably,
the legislature believed that this would tamp down on recalls. Officially, they
focused on the partisan nature of recalls, though dedicated readers (well, spambots)
are aware that is very much not why the vast majority of local recalls occur –
they are really policy or personality-based. Perhaps backers of the amendment
could also have been concerned about people who lost the last election and
either want to take the seat or simply regain it for another official. That
happens (not that often, but enough that it could be its own category), but it
is hard to say that this would solve that situation at all. If (as happens not
infrequently) one governmental body is divided, the lack of a replacement race
could lead to their opponents making the appointment.
As I mention in the piece, a good number of states
forgo the replacement race, though it does not appear to actually limit
recalls. Oregon, which has such a law and has had roughly the same amount of
recalls as California since 2011 (when I started this here blog), is a prime
example of how this may not stop voters from seeking an early termination to a
term.
So how does the new law work? It requires (non-charter
cities/counties and those that adopt the state law) position be filled
according to existing official vacancy laws. Most of these vacancy laws are
written for other circumstances – resignations, deaths or election to other
offices. In those case, an election cannot be held concurrently with the
original election. This leads to a nice delay between the election and the
replacement.
But
the way this law was written creates a hole – can someone run to replace
themselves? The law now appears to do try to do two things at once. The 2022
change outright deleted the old Section 11381(b) dealing with local elections.
The old 11381(c) is now (b) and seems to bar self-replacement, and reads “No
person whose recall is being sought may be a candidate to succeed himself or
herself at a recall election.”
However,
right in the next sentence, the new 11382 specifically says “There shall not be an election for a successor in a
recall of a local officer…” So if a jurisdiction like Oakland and Alameda
mandate a vote for the replacement, is it a recall or is it simply a regular
run-of-the-mill special election vacancy that is “filled according to the law”?
If it is not a recall election – as the plain language clearly says – should
Thao and Price be able to run in the replacement race?
The
new law kicks it back to the local laws for the replacement procedure, and both
Alameda’s and Oakland’s charters say nothing about barring recalled officials
from replacing themselves.
Looking back, the earliest recall laws in California used a snap election method (similar to Wisconsin and as used in the UK and Canada) and the official facing the recall was automatically included on the ballot. Modesto seems to be the first city to the “yes/no” ballot question rather than a new election. Oakland seems to be the first city that combined the recall question and replacement vote into a one-day procedure and, at the time, allowed the official to replacement themselves.
As
I note in the SOCOA blog post, the Partnoy v. Shelley (2003) ruling rejected
the idea that the “recall and the successor election are in fact the same
process” holding that it “cannot be contended that the incumbent is, in effect,
on the same ballot as the potential successors.” The Court goes on to rule
“that the words ‘recall election’ in California Elections Code section 11383
refers to the ‘yes or ‘no’ vote for or against recalling the incumbent
official.” There is a discussion of how the law was written in 1911, but frankly, I don't see it in Franklin Hichborn's Story of the Session of the California Legislature 1911. There is also a look back at the 1974 amendment to the recall that took much of the text out of the California Constitution, though nothing that seems that pertinent to an answer.
Note also that the California Fair Political
Practices Commission holds (for state recalls) that they are two distinct parts
of the same coin, with the recall portion deemed a ballot measure (and
therefore there is no limit on fundraising/donations) and the second
replacement part is a candidate election. It’s not clear how it would treat the
second replacement part if there is no election.
Oakland has a weird mayoral carousel, which, thanks
to the success of Council President Nikki Fortunato Bas, will lead to four
mayors in a short time. But the city has been linked up to the state recall law
for some time.
Alameda was a different story. It had its own recall
law, but it was a bit of a Home Run Baker situation, with a law that officials
claimed would not work – like a very short timeframe to count the signatures.
They pushed for Measure B and, once that passed, picked and chose from the laws
to delay the recall until Election Day.
One fact that is interesting is that Price was apparently the first District Attorney in
the County to originally win the office in an election rather than be appointed
and then win in subsequent races. There were appointive replacements in 1994
and 2009. Another is that the law was changed to put the District Attorney election on the same time frame as the Presidential election, thereby giving Price a potential six year term.
There
is another question that has a significant impact for Californians – can an
official be reappointed to the position. It seems unlikely given the political
risks to the supervisors. But, as I note, there are examples from other states.
In California, there are many jurisdictions – especially the schools boards –
that require replacement by appointment. Allowing self-replacement by
appointment could lead to exactly the type of chaos that the original provision
was designed to avoid. There are also
issues with when the official is out of office, though this is no longer
applicable with Price.
All
of this may sound strange, but California once had such laws and other states
permit recalled officials to run to replace themselves — and some have
succeeded. For example, the mayor of Fall River, Massachusetts, did so in 2019,
losing the recall and winning the same-day replacement race. In the early days of the recall,
California localities allowed self-replacement, and Oakland itself once had
this very provision. For the reappointment, we saw an example this year in Oregon, where three Kings
City councilmembers were recalled, and one of the ousted officials was chosen
as a replacement for one of the other seats (a court challenge is pending).
