Electoral Recall in Washington State and California: California Needs Stricter Standards to Protect Elected Officials from Harassment

• Publication year: 2004

SEATTLE UNIVERSITY LAW REVIEWVolume 28, No. 1FALL 2004

COMMENTS

Electoral Recall in Washington State and California: California Needs Stricter Standards to Protect Elected Officials from Harassment

Joshua Osborne-Klein(fn*)

I. Introduction

The 2003 recall movement in California, which culminated in the removal of Governor Gray Davis from office and his replacement with Hollywood action-hero Arnold Schwarzenegger, is a bizarre twist in U.S. politics that raises some thorny political and legal questions.(fn1) By following the procedures set forth in the California Constitution(fn2) and the California Elections Code,(fn3) a group of California voters discontent with Davis's governorship successfully removed him from office and replaced him with a candidate with no political experience but broad popular appeal and independent wealth.(fn4)

The potential for political chaos resulting from the California recall did not go unnoticed by California voters(fn5) and gave rise to broad, statewide support for reform of the recall system.(fn6) California voters realized what was apparent to many onlookers: The recall significantly disrupted the political system in California and stalled the normal functioning of the government. The recall election forced Governor Davis to campaign relentlessly to maintain his job and distracted him from his constitutionally prescribed duties as the chief executive of California.(fn7) While it is too soon to determine whether anything positive, such as a revitalization of the California economy, will come out of this drastic recall measure, it is unlikely that California's political system will be able to withstand similar disruptions in the future. Thus, California's recall system must be reformed.

Many states have mechanisms to recall statewide elected officials, but these recall systems do a better job of minimizing the potential for political chaos than does the California system. In comparing the recall schemes of Washington State and California, for example, it is apparent that the California recall mechanism suffers from constitutional defects and unnecessarily exposes elected officials to political harassment. The most notable constitutional defect California's recall mechanism has is the signature-gathering requirement, which discriminates against non-registered voters, and thus violates the First Amendment. Since revision is necessary to remedy this constitutional defect and to fulfill the demands of California voters,(fn8) California legislators should begin such legislative efforts.

In order to meet California voters' demand that recall be available only when an elected official has engaged in illegal or unethical conduct,(fn9) California legislators should fashion their new recall system after the one used in Washington State. Washington's recall model not only does not suffer from the constitutional defects of the California provisions, but also more adequately balances the need to protect elected officials from harassment and the desire to give the citizens of a state some direct influence over their elected officials. California legislators should thus work to create this kind of balance by amending its flawed recall process to mimic Washington's effective recall system.

This article highlights the weaknesses of the electoral recall mechanisms in California and the way in which the Washington recall process has avoided such weaknesses. Part II provides general background information on the development of recall mechanisms. Part III explores how the United States Supreme Court has ruled on recall attempts and the specific guidance the Court has provided for states in developing adequately protective recall processes. Part IV analyzes the strengths and weaknesses of the California recall provisions by examining the recall-related opinions of California courts and the complexities of Governor Davis's recall. Part V provides a solution to the California dilemma by exploring an alternative form of recall established in Washington, examines both the constitutional and statutory provisions of Washington's recall mechanism, and analyzes Washington courts' interpretation of these provisions. After comparing the two recall regimes, Part V argues that the Washington mechanism is superior to California's process. Finally, Part VI urges California legislators to promote the true purposes of recall by ensuring government accountability and public participation while minimizing the risks of hindering the government functioning that such harassment of elected officials tends to elicit.

II. Background

A. The Populism Movement Led to the Adoption of the Recall, the Initiative, and the Referendum by Many States.

The movement for recall in the United States was fueled by concerns similar to those that served as the impetus for the initiative and referendum in many states: a fear that state governments were no longer accountable to the people.(fn10) The Populist and Progressive movements at the end of the nineteenth century and the beginning of the twentieth century created these mechanisms of direct democracy.(fn11) The adoption of these procedures was founded on the principle that elected officials are merely agents of the people and, accordingly, the people should have the power at all times to control their agents' activities.(fn12) This increased desire for popular controls over government came about because of widespread corruption and election fraud during that period.(fn13) Thus, initiative and referendum procedures were specifically adopted as a way of allowing the people direct influence over the laws that governed them.(fn14) Similarly, in light of the growing distrust of elected officials,(fn15) recall provisions gave the people the ability to keep their decisionmakers on close leashes, thereby promoting the accountability of representative government.(fn16)

Although early twentieth century efforts at direct democracy came about to increase public control over elected officials, these measures have also been seen as a way to increase public participation in government.(fn17) During the twentieth century, voter turnout on a national level decreased substantially.(fn18) Allowing the public to exert more direct control over government officials through recall elections may provide voters with the sense that their vote is actually important. This phenomenon was demonstrated in the recent California recall election, in which voter turnout was significantly higher than in previous gubernatorial elections.(fn19)

B. Direct Democracy Has Been Misused.

While electoral recall, initiative, and referendum are rooted in policies of democratic principles such as public participation in government and the accountability of elected officials, this type of public power is not without its dangers. Because the electorate is not constituted of only lawyers, politicians, and economists, the electorate may not necessarily understand the delicate balance that keeps government working. Therefore, direct democratic procedures create the possibility that voters might blame their economic or other hardships on elected officials who might not be responsible for their problems. Moreover, while direct democracy can foster the ideals of populism, direct measures also allow special interest groups to bypass legislative safeguards and directly influence the public.(fn20) Just as the initiative and referendum processes bypass the safeguards of the legislative system, (fn21) the installation of new leaders through an electoral recall bypasses the normal protections of a republican form of government. Essentially, a recall regime with weak standards, such as California's, deteriorates an elected official's ability to take actions that may have negative short-term consequences but favorable long-term consequences. By having a term of years secured without the threat of recall except for illegal or unethical acts, as in Washington, elected officials are better able to consider the long-term effects of their policies.

C. The Histories of Recall in California and Washington Are Largely Identical.

1. California

In 1911, electoral recall was added to the California State Constitution as Article XXIII, section 1.(fn22) This was largely a response to the dominance of railroad companies over California's economics and politics.(fn23) As a result of public resentment of the railroads' control of government, the Progressive candidate for governor, Hiram Johnson, won the general election in 1910. (fn24) During this movement, the Progressive Party stressed the importance of the provision in the 1849 and 1879 California State Constitutions that "[a]ll political power is inherent in the people."(fn25) The Progressive position was that "direct democracy" would allow the public to act as a check on the power of the legislature and special interests(fn26) and ensure that the public's "inherent" power is not usurped. Governor Johnson expressed specific interest in direct democratic processes such as the initiative, the referendum, and the recall.(fn27) In tandem with the Progressive majority in the legislature, Governor Johnson proposed the constitutional amendments that created the initiative, referendum, and recall procedures, which were adopted by voters on October 10, 1911.(fn28)

Until its repeal and codification in the California Elections Code in 1970...