- State Senator Josh Newman (D) is facing a legislative recall, the first in the state in almost a decade and the first anywhere in the country since 2013.
- Santa Clara Judge Aaron Persky is facing a recall vote. Persky is the first full-time judge anywhere in the country since 1982. If he is removed, he will be the first to be kicked out by recall since 1977. In California, no judge has faced a recall since the days of Herbert Hoover in 1932.
Let’s look at Newman in this post and Persky in the next.
Newman will be the 39th state legislator to face a recall vote since 1913. He is the ninth California legislator on that list and the first since then-state Senator Jeff Denham in 2008 (in a similar situation).
The last state legislative recalls in the country took place in Colorado in 2013, where two Democratic state Senators, Senate President John Morse and Angela Giron, were removed over their support for gun control legislation. The Newman recall is ostensibly over his vote in favor of a gas tax, but there is a very clear political/legislative strategy focus to the recall, of a type that we’ve seen many times in the past. Newman’s district is one of the closest contested ones in the state, and Newman won office by less than 2500 votes.
If Newman is ousted and replaced by a Republican, the Republicans will then prevent the Democrats from retaining a two-thirds majority in the Senate.
Whatever the issues surrounding the gas tax, the Newman recall appears to have been launched over an attempt to deprive the Democrats of a two-third majority in both houses.
In the past, there have been multiple attempts to use the recall to “flip the chamber” – including the historic California recall battles of 1995. In 2008, the Democratic leadership tried to recall Senator Denham in order to gain the 2/3rds majority – they failed, as Denham easily won the office and then went on to win a Congressional seat.
There were also attempts to recall three state Senators in Nevada this year (two Democrats, one-Independent). One failed to get enough signatures, the others failed following the handing in of signatures.
The Recall Explosion:
Recalls generally result in removal – from 2011-2017, close to 60% of recalls that get to the ballot result in the official losing the vote (plus many others result in resignation before a vote. State legislative recalls are much closer to 50-50, the success breakdown is 20-18 in favor of removals -- but Wisconsin really skews the numbers. In 2012-2013, 13 legislators faced recalls and only three were removed (I count this resignation in the survived a recall column, as the Republicans easily retained the seat).
The vast majority of legislative recalls have taken place in recent years -- only five took place before 1971, and 21 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 took place in that time).
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.
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).
Give me Two Steps:
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 has this exact process is Colorado. There are six candidates running the replacement race. Newman is not allowed to run to replace himself.
In Colorado in 2013, the hybrid process was received significant attention 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. The second point, which two courts have ruled on was the question of whether you could be barred from voting in the replacement race if you don’t vote on the recall question. This same question came up in California in 2003. The Ninth Circuit ruled this provision unconstitutional (under the 1st and 14th Amendments). In a 5-2 decision, the Colorado Supreme Court apparently followed the same logic.
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 in 2012-13 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, Colorado in 2013). Same thing with Democrats (Wisconsin in 2011-12, 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 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 (as well as removed the replacement race for Governor). Others have done same after a recall loss.
In this case, the Democrats made these changes before the recall. They passed a law that allowed petition-signers to remove their name from petitions (a law that had an immediate impact in another race) as well as change the contribution limits so that Newman’s colleagues in the state Senate could help him in the race. Both of these provisions have been tied up in the courts, though it has allowed the recall of Newman to be delayed until primary day (which my eventually to be published statistics suggests may not matter). The law also requires the Board of Elections to estimate the costs of the recall.
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 borne 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, even with an early flame-out in his presidential attempt 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. Jeff Denham is now in 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.
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. Recalls are clearly a part of political life, but as can be seen by the nearly five year hiatus from state legislature, they can wax and wane. The Recall is truly the Bermuda Triangle of politics.
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