Democracy in the wake of the California recall.

• Jurisdiction: United States
• Author: Anderson, Elizabeth Garrett
• Date: 01 November 2004

The recall of Governor Gray Davis and simultaneous election of Arnold Schwarzenegger provide a unique window into aspects of elections and democratic institutions that are not limited to statewide recall elections. Although one must be wary of drawing general conclusions about the political process from an unusual event such as the statewide recall, this election can serve as a way to think about broader issues relevant not only to future recalls but also to all candidate and issue elections in California and throughout the nation. In this article, I will discuss insights that the recent recall provides with respect to four familiar areas of law and politics. First, the recall demonstrated the significant and sometimes troubling role that money plays in modern campaigns, as well as the difficulty of constructing effective and comprehensive campaign finance laws. Second, the unusual structure of the recall election, where an election for Davis's successor was on the same ballot as the recall question, helps to illustrate the role of political parties in elections. It suggests that independent and minor party candidates can be part of an election without necessarily causing widespread voter confusion. Third, the more than twenty lawsuits filed before the election was held--with one threatening to delay the election for months until an en banc panel of the Ninth Circuit stepped in---demonstrate that litigation is being used more aggressively as political strategy (1) in the wake of the Supreme Court's intervention in the 2000 presidential election. (2) Unless courts take a less activist role in cases affecting elections, this disturbing trend is likely to continue. Finally, I will conclude with a discussion of the interaction between direct democracy and representative democracy. In states with a hybrid system like California, these two forms of democracy influence each other--a reality that we witnessed in the days before the recall election and that we are likely to continue to see as Governor Schwarzenegger threatens to use initiatives to pressure a recalcitrant legislature to do his bidding.

1. MONEY, THE RECALL, AND ELECTIONS

   California adopted a statewide recall process in 1911 as part of an effort by John R. Haynes and other progressives to implement a system in which corrupt officials at both the local and state levels, particularly those beholden to the mighty Southern Pacific Railroad, could be removed before a regularly scheduled election. (3) Before the successful recall attempt in 2003, groups had attempted to qualify a gubernatorial recall for the California ballot thirty-one times, including a previous attempt aimed at Gray Davis in his first term, but all those efforts had been unsuccessful. (4) The California Constitution requires that petition circulators gather signatures equal to 12% of those who voted in the last gubernatorial election. (5) Because turnout had been so low in the lackluster general election between Davis and Republican Bill Simon, the recall forces needed to collect just 897,158 valid signatures to qualify the recall for the ballot. (6) Even with that relatively low threshold, the drive would not have succeeded, at least in placing the recall on the ballot in the fall rather than in March when conditions would have been more favorable to Davis, without the support of an ambitious legislator, Republican Darrell Issa, who contributed around $2 million to help foot the bill for paid circulators. (7) The sophisticated initiative industry in California includes companies that offer clients a money-back guarantee if they do not produce enough valid signatures to qualify something for the ballot; in return, they are paid about $1.50 per signature. (8)

   Since the Supreme Court held laws banning paid circulators unconstitutional, (9) a group seeking ballot qualification can be certain of success if it is willing to pay enough. Money is a sufficient condition for ballot access, although it does not assure that the ballot question will pass. Grassroots groups with broad-based support and energized members can still rely on volunteers to gather enough signatures, but even these groups are increasingly turning to paid circulators because of the guarantee of success. Recalls are no different from initiatives in this way--with $2 million dollars in their war chest, the pro-recall groups easily exceeded the signature threshold by a considerable amount. In the end, they turned in petitions with more than 1.36 million valid signatures. (10)

   The great influence that money wields in the qualification stage of direct democracy has justifiably led to calls for reform. As Daniel Lowenstein has argued, capitalism is a strange way to allocate ballot access in a democracy (11) (unless one is willing to defend the dubious proposition that wealth corresponds to merit in the political realm), but the reality is that money can buy a place on the ballot, even if it cannot entirely determine the outcome of the election. Many of the reform proposals ostensibly designed to respond to the influence of money, including those currently being discussed in California in the wake of the recall, would simply raise the signature threshold. California's threshold for a statewide recall is the lowest in the nations, (12) and it is lower even than California's requirements for recalls of state legislators and judges. To recall those officials, petition gatherers need signatures equal to 20% of the votes cast in the official's electoral district. (13)

   The most substantial reform proposal, a constitutional amendment proposed by Assemblyman Mark Ridley-Thomas, would require signatures equal to 12% of persons registered to vote at the last election--not those who actually voted--to place a gubernatorial recall on the ballot. (14) This would change California from the most permissive state to one of the most rigorous states, and not surprisingly Ridley-Thomas was a vocal opponent of the recall process. Other proposals for reform would bring California in line with other states and require circulators to gather signatures equal to 25% of those who voted in the last election. (15)

   Whether California's relatively low threshold for a gubernatorial recall is too low is unclear. After all, there has been only one effort that has qualified for the ballot in ninety years, and for the past several decades, the initiative industry in California has surely been sophisticated enough to realize that a substantial war chest could qualify a recall just as it can an initiative. Nothing in the law or constitution changed in 2003 that made a recall suddenly more possible than it was five or ten years before, although the low turnout in the 2002 general election meant that fewer signatures were required to meet the 12% threshold. The success of the 2003 recall has made the process salient; thus, it is likely that we will see an increase in the attempts to qualify statewide recalls. Nonetheless, any substantial increase in the number of signatures seems motivated more by a dislike of direct democracy than by a genuine desire to improve the process. In essence, these proposals reduce the number of recalls by raising the cost of petition drives. Rather than increasing the price of ballot access, thereby ensuring that only the well funded will have the ability to use the recall tool, policymakers and voters should formulate reforms consistent with the purpose of direct democracy.

   The goal of direct democracy, whether ever realized or not, (16) is to allow the people to circumvent the traditional legislative process when it is dominated by powerful narrow interests. Although representing only a minority, such interest groups can disproportionately affect the legislative process either by taking advantage of vetogates to block change or by gaining benefits through logrolling. Elected officials may be extremely attentive to the wishes of organized groups with intense preferences because these groups have the ability to monitor the legislature closely and to reward their supporters with campaign contributions and other benefits. The initiative, referendum and recall processes are intended to give grassroots movements that plausibly represent majority wishes methods to discipline elected agents when they are more responsive to minority interests rather than to the larger electorate. The design of direct democracy should be consistent with the objective of empowering the relatively unorganized many as they combat the clout of the organized but impassioned few in the legislative arena.

   Signature thresholds were intended to serve as a signal of significant grassroots support for an issue before it was elevated to the ballot. At the time this mechanism was chosen as the triggering event for ballot access, the drafters of direct democracy provisions did not envision the widespread use of paid circulators or the involvement of a professionalized initiative industry of consultants. Simply raising the thresholds in response to the new reality may mean that fewer recalls will occur, but it does not serve the populist objectives of direct democracy. Instead, it strengthens the hand of those who can afford to spend substantial money on a petition drive and makes it even harder for all-volunteer efforts to succeed. For example, had it been in place in 2003, the Ridley-Thomas proposal would have required a successful recall drive to get more than 1.8 million signatures--more than double that required to qualify the Davis recall. (17) Raising signature thresholds alone means that many groups will be priced out of the market, including many truly grassroots groups. Thus, the few issues that qualify for the ballot will most certainly be the product of special-interest money and organization. Such ballot questions may not be able to win in the election, (18) although savvy groups will work to qualify issues that resonate with voters and to frame ballot...