But as we’ve seen so often with recalls (and petitions in general), signatures will be tossed out. The reasons are usually mundane, which is what happens when you’re collecting signatures on the street and frequently paying people to collect. The problems range from the signers not being registered to signing more than once to living out of district or state or (in rarer instances) using fake names. While most recall attempts fail because petitioners do not hand in any signatures, over the last nine years (2012-2020) I count at least 129 recall attempts throughout the country in which petitioners handed in enough unverified signatures, but the rejection rate resulted in the recall failing to get on the ballot. 32 of these rejections happened in California. So while not an everyday occurrence, signature failures are certainly something to consider.
Because of this potential for signature failure, the petitioners have made it clear that they are shooting for a significant cushion for the recall effort. They are looking to collect 2 million signatures, which would put them 25 percent over the minimum. Which leads to the natural question – is that enough? Currently, petitioners seem to be getting verification at an 80-83 percent clip, which would work. They would need a little over 1.8 million at that rejection rate. But a look at other recalls and ballot measures may get them a little nervous.
In the past, I've seen articles suggesting that a general rule of thumb is a 10-15 percent failure rate, though I'm not sure where that is from (and the article links are now dead). We actually see a 10 percent number referenced in the law – you just have to scroll down in the Code. State level recalls require all the signatures to be verified. But local recalls use a very different law.
If there are more than 500 signatures submitted for the recall, the clerks can use a random sampling verification technique (take sampling/determine the number of valid/extrapolate to the rest). Using this procedure, if valid signatures top 110 percent of the minimum number, the recall qualifies and moves to the ballot. (If it is between 90-110 percent, they verify each one. If it is below 90 percent, it fails).
But the 10 percent total is clearly too low. So let's look at what we've seen in California and elsewhere:
Looking at our closest comparison in California, the 2003 Gray Davis gubernatorial recall, the failure rate was just under 18%. That's pretty much where the Newsom effort is now.
Since then, there have been two state level recalls, both against state Senators. In both cases, we saw a significantly worse result for petitioners, even though the recalls got to the ballot. In 2018, the failure rate for the State Senator Josh Newman recall topped 25 percent (73.66 percent were validated).
The 2008 recall effort against State Senator Jeff Denham, saw a 41.5 failure rate (58.58 percent were validated). This verification was under the random sampling technique (the law was changed in 2018 to remove state level recalls, at least partially to slow the Newman recall effort).
There is another recent recall effort that is also worth considering. In 2018, Santa Clara JudgeAaron Persky faced a recall, the first against a judge in California since 1932 (and the first in the US since 1982). The judicial district was much larger than a regular state senate one. Petitioners needed 58,634 signatures to get on the ballot. Using the random sampling rules, the registrar found that 3389 of 4727 signatures were valid. Since the petitioners handed in 94,539, this was more than enough to get on the ballot. But the failure rate was over 28 percent (the verification rate was 71.6 percent).
Do initiatives tell us anything on this front? Prop 22 was the most high profile initiative in the 2020 race, as petitioners spent more than $6.4 million to get on the ballot. Petitioners needed 623,212 and handed in 987,813 signatures. Once again using the random sampling method, 22.5 percent were found invalid (77.5 percent were verified). A similar result can be seen in a Proposition that required a higher signature total. Prop. 15, which spent nearly $6 million to get on the ballot, was a Constitutional Amendment, which therefore required 997,139, putting us closer to the amount needed for Newsom. Petitioners handed in 1.75 million. Once again, the random sampling method found 25.4 percent invalid (74.60 percent were verified).
In other states, we see a potentially different picture. The last state to hold a gubernatorial recall, Wisconsin had a very different recall law. As Richard Winger of Ballot Access News pointed out, Wisconsin allows the signatures of any eligible voter in the state, not just any registered voter (as in other states). This makes signature rejection much less likely.
The petitioners in the Scott Walker recall garnered an enormous cushion. They handed in 931,053 signatures and they only needed 540,000. At the end of the day, 900,938 were found valid (4,001 duplicates, 26,114 struck out by staff). This is a 3.2% failure rate. For Lieutenant Governor Rebecca Kleefisch (who appeared on a separate petition), the failure rate was 4%.
The Wisconsin verification also appeared to be different and I am unsure if the fact that Governor Scott Walker effectively conceded the success of the signature gathering portion eliminated the challenges.
In the Senate races in Wisconsin in 2018 we saw some similar numbers. For the Senator Galloway petitions, there were 21,022 signatures handed in, and the GAB struck out 1,658. Galloway further challenged 863. The board did not bother looking at the challenged signatures. So the failure rate on the GAB was 7.8%. If we add in the Galloway protests, it is close to 12%. The Senator Wanggaard petitions are a little more complex, as he challenged many more signatures -- if all of his signature challenges had been approved, it would be about a 20% failure rate. From the board's review it was less than 3%. For Senator Moulton, the board threw out 5.7% of the signatures. His challenges would have pushed it up to about 11%. For Senator Fitzgerald, the board tossed out 4.1%. With his challenges, it would be just under 12%.
In the 2011 Wisconsin nine Senate recall races, saw a higher rejection rate, but again it was not clear what was happening. Two petitions posted an alleged 25-27.5% failure rate, there are two (both Democrats) with a 17-18% failure rate, there are three with a 6-8%, and two with effectively zero.
What about the other state legislative recalls of the last decade? We have four to choose from.
In Colorado in 2013, two State Senators lost recall elections. Senate President John Morse (D) saw a 37.5 percent invalidation rate. Colorado historically seemed to have a high invalidation rate, so this wasn’t a surprise. But the second recall was. State Senator Angela Giron (D) saw a 6 percent invalidation rate with only 818 signatures tossed out of 13,466. Petitioners used a new program that allowed them to check the signatures, which explained their accuracy.
In 2011, there were two other recall efforts, with very different verification rates. Arizona Senate Majority Leader Russell Pearce recall saw a 42% failure rate. (Arizona also has a historically high failure rate on the local level). On the other hand, the 2011 Michigan State Rep Paul Scott recall had a 9.4% failure rate.
A last example to consider: The 2011 Miami-Dade Mayoral
recall, which collected over 100,000 signatures, saw a
16% failure rate.
One other factor to consider is claims of deliberate signature fraud. There are a few examples of signing fraud. Japan just saw a crazy version of this, with the lead petitioner hiring people to simply copy the names out of the registration book. In general, widespread signature fraud appears to be both fairly rare and not that difficult to uncover.
That’s not to say that they won’t be made. The claim of deliberate fraud can certainly ignite a party’s base and help muddy the waters against a recall effort. Much as in the last election, the Republicans banged this drum repeatedly in the Scott Walker recall campaign, where they claimed that a huge proportion of the signatures would be fake – the so-called Mickey Mouse signature. However, elections officials claimed to have found only 5 fake names in the Walker petitions: Adolf Hitler, Mick E. Mous, Donald L. Duck, Fungky Van Den Elzen, and I Love Scott Walker Thanks.
The Davis campaign seems to have had a similar argument, though once again it was the Republican side that made the claim. One of the companies that said they led the petition gathering efforts claimed that Davis forces ran a "blocking" campaign by hiring all the good signature gathering companies. They also intimate that Democrats were planning on submitting deliberately false signatures, though that seems unlikely (and crazy -- more likely than not, if the verification process missed a fake signature, it would have been included in the count).
One last issue that may impact the signature race is the signature removal provision. California now gives Newsom 30 business days to fight fire with fire and collect signatures from signers of the petition asking to have their names removed. This law was adopted during the Newman recall and did not work for him, but it did help out a Newport Beach Councilman. Nevada also saw uses of a similar provision. It may be a long shot, but if the numbers are close, a signature removal effort could make all the difference.
What does this mean for the Newsom recall? It is not clear. The petitioners clearly are feeling quite confident. This could be due to a belief that exhibiting confidence will get more people to sign. Or it could be that they feel they have a better vetting method, so they are removing more of the obvious failed signatures before handing them in. They may also feel that they have better training of signature gatherers, which would likely improve the signature verification rate.
On the opposite side of the coin, it could be that the strong performance so far was the relatively low hanging fruit of the recall effort, and the last group needed to get over the hump will see a higher failure rate. One of the advantages that the Davis petitioners had was that turnout in the 2002 election was so low, getting on the ballot required an historically small percentage of signatures. That is not the case here, and the last group of signers may be harder to get.
The track record does suggest that a 25 percent cushion can be enough, but it may make for a closer result than petitioners would like.