California: Alameda County District Attorney and Oakland Mayor ousted in recall vote -- questions on who will replace them

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).