Jim de Bree | We Must Reform the Recall Process

Jim de Bree
Jim de Bree

On Sept. 14, California voters will vote whether to recall Gov. Gavin Newsom, and if he is recalled, who his successor will be. This marks the second time on less than 20 years that a California governor faces a recall election.  

The recall process was added to the California state Constitution when Hiram Johnson led a successful effort to reform California politics. In addition to the recall process, other reforms included the election of U.S. senators by direct popular vote, and the initiative/referendum processes. 

At the time California was economically and politically controlled by the Southern Pacific Railroad.  

Because Southern Pacific had so much power, it had the ability to thwart many recall processes, so getting a recall measure on the ballot intentionally had a low threshold. Unlike many other states with a recall process, California does not require specific grounds for a recall. 

Several other states require that recall sponsors provide proof of malfeasance or misconduct while in office. Those states did not have to deal with a railroad that was known as the octopus because it had its tentacles into every aspect of state politics.  

Since the railroad controlled state politics, the process was designed to circumvent that control. 

Instead of having a recalled governor be replaced by the lieutenant governor (who likely was also under the railroad’s control), there is a popular election to determine the governor’s successor. 

If there are more than two candidates running, the winner is the candidate who wins the most votes, even if that person only receives a plurality. 

Today, no single entity controls as much political power in California as Southern Pacific did a century ago. Arguably, there is no need to have a recall process that is as easily invoked as the California process. 

In California, the threshold for holding a recall is only 12% of the number of voters who voted in the previous election.  

Berkeley Law School Dean Erwin Chemerinsky and law and economics professor Aaron Edlin recently wrote in the New York Times that California’s recall process violates the Constitution because it does not treat all voters equally. 

They argue that the two-step process must be bifurcated into two separate elections. The first is an election to determine whether the governor should be recalled. The second is to elect a successor governor. 

They argue that we currently have an election process where the incumbent needs a majority vote to win, but any other candidate merely needs a plurality to be victorious. In other words, the ousted governor could get more votes than the successor. 

That made sense when the railroad’s control ensured that no candidate could obtain a majority without its blessing, but that paradigm is obsolete today. 

If you compare the mechanics of the recall procedure with that of impeachment, when the president is impeached, there is no election for his successor. Instead the vice president becomes president. 

Since the railroad no longer exerts political control, shouldn’t the successor of a recalled governor be the lieutenant governor? 

Article 2, Section 15, of the California state Constitution provides for an election to choose a successor “if appropriate” to do so. For example, if a legislator is recalled, there is no formal means of replacing that official other than holding an election. 

However, we have a formal procedure for replacing a governor. 

Article 5, Section 10 of the California Constitution states, “The lieutenant governor shall become governor when a vacancy occurs in the office of governor.”  

Recalls are not meant to be politically motivated, but rather are a deterrent against malfeasance and misconduct. 

Yet, this year’s recall is politically motivated. One party was able to use rules designed to circumvent the railroad’s political control to prevent a governor who received 62% of the vote from completing his term. 

Professor Edlin acknowledged this when he stated, “It’s not a political issue for me, it’s an issue of process. I think it’s terribly undemocratic.”  

I did not vote for Gavin Newsom in 2018. But I do not believe that he engaged in malfeasance or misconduct that warrants his removal, so I will vote no on the first part of the recall measure. 

I have not decided for whom I will vote in the second part of the ballot. I realize many Democrats are planning on not voting for a candidate to replace Newsom, but that ensures that their views won’t count in the election. 

Regardless of your political affiliation, please vote on both parts of the ballot. Contrary to misinformation that is circulating, voting on the second part of the ballot will not nullify a no vote in the first part. 

After the election, we should undertake a bipartisan effort to create a statewide ballot initiative to reform the California state Constitution to update the recall process to conform to 21st century realities. 

Jim de Bree is a Valencia resident. 

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