Tuesday, March 23, 2021

California: Demystifying the Plurality Voting Conundrum

Edit: Upon further review, there was an issue with the state's replacement model. Many use the automatic replacement law for Governors. I've since made the change below:

Thanks to Professor Rick Hasen at the Election Law Blog for running this as a guest post. Just going to include the text here:

Attention is now being paid to one factor of the recall of California Governor Gavin Newsom (D) – the way the recall operates and whether it is “fair.” California’s recall law uses a one-day, two-step process. There is an up or down vote on whether Newsom, where he needs to win a majority (or a tie) to stay, combined with a concurrent vote on the replacement candidate, which only counts if Newsom loses. The replacement candidate only needs a plurality to be elected. Newsom is not allowed to run to replace himself. The result of this structure is that Newsom’s replacement can win office with a tiny fraction of the vote that Newsom received in losing office.

Despite the fact that there were 135 candidates on the replacement ballot, this did not occur in the 2003 gubernatorial recall, when Arnold Schwarzenegger received almost 200,000 more votes in the replacement race than Gray Davis/No on Recall received. However, over the last 10 years, there have been at least five instances where the elected official who was kicked out in the recall outdrew the winner of the replacement race, including one last year in Santa Ana, as well as the most recent state-level recall election, State Senator Josh Newman in 2018. 

The issue of whether a recall victor should be able to receive fewer votes than the removed official is not new. Recall laws across the country have seen attempts to solve the problem of how to choose a new candidate. Idaho uses a “Queen of the Hill” provision (the amount of votes in favor of the recall has to top the votes received by the official in their victory). Some local jurisdictions, as well as other countries, require what I call an “absentee veto” – where total voter turnout in a recall needs to be higher than a set percentage of the population in order for the recall to count. 

Variation in recall laws has always been the rule, not the exception. The early comprehensive study of the recall in California (Bird & Ryan’s book published in 1930) notes that in the cities of California alone “…there has developed such a variety of treatment of all the features of the law that it is difficult to think of any possible innovation left untried.” (58) 

In the 19 (or possibly 20) states in the US that allow recalls against Governors or state level officials, the primary divisions in recall structure are 

1) a Yes or No vote or just a new election; 

2) a replacement race or filling the position in the matter set out by the law (i.e. the Lieutenant Governor takes over) ;

3) whether a replacement race should be the same day as the recall or held on a different day. 

The differences breakdown as follows by state:

Yes or No, Same Day Replacement: California, Colorado 

Yes or No, Different Day Replacement, Georgia, Illinois (though primary may be the same day), 

Yes or No, replaced by Lt. Governor (Automatic replacement model): Alaska, Idaho, Kansas, Louisana, Michigan (only for the Governor, changed in 2012. All other recalls in the state use the New Election model), Minnesota, New Jersey (just for state-level officials), Oregon (No Lieutenant Governor, replaced by the Secretary of State), Rhode Island, Washington.

New Election: Arizona, Nevada (if no other candidate runs, then it seems it is a yes or no vote), North Dakota, Wisconsin

Recall Trial: Virginia (probably doesn’t impact the Governor, may hit other state officials).

Even within these divisions, there are variations. In some places, candidates are allowed to run in the replacement race, which has led to the odd result of a candidate being defeated and then replacing themselves. 

The Yes or No with a new election may seem unfair, but two of  most recent states to adopt the recall (Illinois and Georgia) have opted for this method with a replacement race. 

States have also changed their laws over time. Oregon moved to the automatic replacement model (actually, filling the replacement by law rather than election) in the early years of having the recall; Michigan made this change for Governor back in 2012. 

Grant just won the replacement race and contemporary accounts didn't explain it that well: (Even California, which has had the same provision since 1911, seemingly had a New Election structure in one of its most important early recalls, against state Senator Edwin Grant. Contemporary reports claim that Grant lost by 531 votes to his predecessor Eddie Wolfe. None of the stories seem to explain the discrepancy in how the recall law worked, though it is likely that the election simply used San Francisco’s charter law New Election provision.)  

It may seem unfair that Newsom or any other official can lose their position to a replacement who gains fewer votes. But California voters have had 110 years to change this structure. The legislature has not been that shy in tinkering with recall laws – as we saw in 2017 with the adoption of a signature removal law. Other states like Oregon and Michigan have seen their recall model changed. It may be difficult, but if California voters really wanted the law changed, they could have done it. The structure, put in place with more than 76% of the vote in favor, should be respected.  

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