California Gov. Gavin Newsom meets with people at a union hall in San Francisco on Tuesday, Sept. 14, 2021. California voters will decide whether to recall Newsom, concluding an idiosyncratic election that has been held in the middle of a pandemic and closely watched as one of the first big indicators of the country’s political direction since President Biden took office. (Jim Wilson/The New York Times)

California Gov. Gavin Newsom meets with people at a union hall in San Francisco on Tuesday, Sept. 14, 2021. California voters will decide whether to recall Newsom, concluding an idiosyncratic election that has been held in the middle of a pandemic and closely watched as one of the first big indicators of the country’s political direction since President Biden took office. (Jim Wilson/The New York Times)

As California votes, it rethinks its tradition of direct democracy

‘This is a system that was put in place 100 years ago’

By Thomas Fuller, Maggie Astor and Conor Dougherty

New York Times

SACRAMENTO — As Californians went to the polls Tuesday to determine whether Gov. Gavin Newsom would be removed from office, the recall election had already spawned another campaign: Recall the recall.

In a state famous for its acts of direct democracy, whether banning affirmative action or legalizing cannabis, detractors of this year’s special election say the recall process is democracy gone off the rails, a distraction from crises that require the government’s attention and a waste of hundreds of millions of dollars.

California’s forests are on fire. Towns are running out of water from severe drought. Wildfire smoke is sending thousands of residents fleeing, and some rural hospitals are packed with coronavirus patients.

Many voters who went to the polls Tuesday said the election was an unwelcome distraction that preoccupied Newsom and, some critics said, might have prevented him from taking on tough decisions.

“This recall is so dumb,” said Frankie Santos, a 43-year-old artist who voted in Hollywood on Tuesday. “It’s so not a good use of resources.” She said that if she could have scrawled “absolutely no” to recalling Newsom without invalidating her ballot, she would have.

Anthony Rendon, speaker of the state Assembly, and other legislative leaders have already said discussions were underway to place a constitutional amendment regarding recalls before voters in 2022.

“This is a system that was put in place 100 years ago,” said Rendon, referring to the current recall rules. “We’ll be asking if this is what’s best for the state.”

The election, which is costing the state $276 million to administer, has at times had a circus atmosphere to it, not least when one of the 46 candidates on the ballot brought a large bear to a campaign rally.

No one in the state’s Democratic leadership is suggesting the elimination of recalls, which are baked into the state constitution. But many are vowing to make it more difficult for them to qualify for the ballot, or to change the rules on how a successor is chosen.

Currently, opponents of a governor — or any other elected official in California — can trigger a recall election by submitting signatures equal to 12% of the turnout in the most recent election for that office.

In a sharp piece of political irony, it will take a referendum to decide whether to change this particular referendum.

Democrats will be working over howls of opposition from Republicans, who see the recall process as one of the few resorts left to them in a state where Democrats control every statewide office and have supermajorities in the legislature.

“The last thing we need is legal changes that make it even harder for Californians to access their government,” said Kevin Kiley, a Republican assemblyman who ran in the recall election.

Kiley said Democrats had already tried to delegitimize the process by calling it a democratic coup.

“If they are trying to make it harder or impossible to hold your public officials accountable, that is absolutely something that I would oppose,” Kiley said.

Critics of the recall process say it is fundamentally antidemocratic. With a simple majority, voters could recall Newsom, who was well ahead in the polls in the final days of campaigning. But his replacement would be chosen by plurality.

Polling showed that the front-runner to replace Newsom, conservative talk show host Larry Elder, had nowhere near a majority of support, and many Democrats left that section of the ballot blank.

Erwin Chemerinsky, a constitutional law expert and the dean of the School of Law at the University of California, Berkeley, argued that the state’s recall process is unconstitutional because the two-step nature of the process — with voters deciding whether to recall the sitting governor and then, separately, choosing a replacement — makes it possible for a new governor to take office with less popular support than the old one.

If 49% of voters supported Newsom, 25% supported Elder and fewer than that supported any other candidate, Elder would become governor with about half as many votes as Newsom. In that scenario, the vote of one Elder supporter would effectively have twice as much power as the vote of a Newsom supporter, said Chemerinsky — and that would violate the “one person, one vote” principle affirmed in two Supreme Court decisions in 1964, Reynolds v. Sims and Wesberry v. Sanders.

Californians were not forced to confront that problem in the 2003 recall, in which Arnold Schwarzenegger replaced Gov. Gray Davis, because Schwarzenegger received more votes on the second question than Davis did on the first.

Davis, the first California governor to lose a recall election, said in an interview that the ability to recall officials was part of California’s “unique direct democracy approach to voting,” but that he supported changes to the specifics of the process.

“For 110 years, anyone running for governor knew there was a possibility of being subject to a recall,” he said. “It comes with the territory — and life isn’t always fair.”

But he argued that the threshold for getting a recall on the ballot — signatures from 12% of the voters in the previous election for governor — was insufficient in an era that allows interest groups to gain supporters with the click of a button on Facebook.

“We should go from a 12% to a 25% threshold,” Davis said, and ask voters only one question: “Who should serve out the balance of the governor’s term?”

State Sen. Josh Newman, a Democrat who experienced the state’s recall rules firsthand when he was recalled in 2018 and replaced by a candidate who received fewer votes than him in the recall election, said he planned to propose a constitutional amendment early next year that would remove the replacement race on the ballot. Voters would decide whether a governor should be recalled, and if so, the lieutenant governor would automatically take the job. Newman ran against his replacement and won back his seat in 2020.

Yet amid the plans and proposals to tweak the recall rules, there were voters who wanted them to stay just as they are.

Jim Mastrosimone, a voter in Irvine, groused that the list of replacement candidates was too long after casting his vote for Elder.

But ultimately, Mastrosimone said, he is happy Californians have recall elections.

“It gives the power to the little guy,” he said.

This article originally appeared in The New York Times.

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