The 2003 California Gubernatorial Recall

• Publication year: 2022

41 Creighton L. Rev. 37. THE 2003 CALIFORNIA GUBERNATORIAL RECALL

Creighton Law Review

Vol. 41

FLOYD FEENEY(fn*)

California is one of eighteen American states that authorize the recall of statewide officers,(fn1) and one of the approximately thirty-six states that authorize the recall of local elected officials.(fn2) Although a few states purport to authorize the recall of members of Congress,(fn3) the U.S. Constitution appears to preclude this,(fn4) and California law does not authorize such recalls. No state purports to authorize recall of the President.(fn5)

As the name suggests, "recall" is a way to remove an elected official before the end of the official's normal term in office.(fn6) In this respect, "recall" is similar to impeachment. In other respects, however, recall differs radically from impeachment. Recall is a direct democracy device - initiated by signatures from individual citizens and resolved by a vote of the people. Impeachment, by contrast, is a legislative procedure - triggered in California, as under the U.S. Constitution, by a vote of the lower house and resolved by a vote of the upper house.(fn7)

In a highly publicized election that some called a "media circus," California used this not so well known procedure in 2003 to remove Gray Davis, its sitting governor, and replace Davis with Arnold Schwarzenegger, a world champion body builder and renowned movie actor. This action was by far the most significant use of the recall in the United States to date. This Article seeks to describe the circumstances that led to this extraordinary action and to explore some of the lessons that might be learned from it. Part I discusses the concept and history of the recall procedure. Part II gives a brief history of the 2003 California gubernatorial recall, describing the political situation in California just prior to the recall, the beginnings of the recall movement, the struggle to collect the signatures necessary to qualify the recall and require an election, the candidates who decided to seek the governorship if the recall election succeeded, and the recall campaign. Part III explores the character of the California recall campaign as it evolved, and the role that money and lawsuits played in the outcome. Part IV assesses how well the California government and legal system performed its duties related to the recall, while Part V describes the public's reactions. Part VI contains some final reflections.

I. THE RECALL IDEA

In the America of the late 1800s, hard pressed farmers and workers, particularly in the Western states, viewed their legislatures as being under the thumb of special interests, especially the railroads. To cure this problem, Populists in the late 1890s and Progressives in the early 1900s advocated more direct control by the people themselves - through the initiative, the citizen-initiated referendum, and the recall.(fn8) Although there were antecedents going back as far as ancient Rome, this agenda was clearly borrowed in major part from Switzerland, particularly Zurich where the Socialist Karl Buerkli was using the initiative and the citizen-initiated referendum to push reforms aimed at helping workers.(fn9) Although the recall had existed in canton Schaffhausen, perhaps since the 1820s, even in Switzerland the recall was more novel and less developed than the citizen-initiated referendum and the initiative.(fn10) The recall idea, however, had early American roots that helped to create a fertile climate. In 1776, Pennsylvania recalled its delegates to the Continental Congress when they refused to sign the Declaration of Independence.(fn11) And in 1778, even before they had completed winning their independence, the thirteen American colonies included in the Articles of Confederation a provision specifically authorizing the recall of delegates.(fn12) Because these home grown procedures relied primarily on local legislative bodies to trigger the recall, however, the Swiss idea of using citizen signatures was an important innovation.(fn13)

In 1903, the city of Los Angeles became the first American jurisdiction to adopt the citizen-initiated recall.(fn14) The first state to adopt this kind of recall for statewide officers was Oregon, doing so in 1908.(fn15) California was the second state to adopt the procedure.(fn16) Campaigning for the California governorship on a platform that called for adoption of the initiative, the referendum, and the recall, as well as women's suffrage, direct election of senators and presidential primaries, Hiram Johnson, a reform-minded Republican, triumphed in the 1911 election. Losing no time, Johnson persuaded first the legislature and then the voters to approve his most important proposals in less than ten months.(fn17) Although the recall (because it could be applied to judges) was much more hotly debated in the legislature than the initiative or the citizen-initiated referendum, all three were approved by over three-fourths of the electorate.(fn18)

By 2003, California had voted on some 287 state-wide initiatives and 40 state-wide referenda since these procedures were adopted in 1911.(fn19) Prior to 2003, however, no statewide recall effort had ever reached the election stage. Beginning in 1936, there had been thirty-one attempts to recall governors, including an attempt to recall Ronald Reagan when he served as governor. None of these efforts succeeded, however, in collecting enough signatures to require a vote by the electorate. Most did not even come close. There had been one at-tempt to recall a lieutenant governor, two attempts to recall the state attorney general and twenty-seven attempts to recall a member of the California Supreme Court.(fn20) Well organized efforts in 1982 to recall Chief Justice Rose Bird failed but played a role in her election defeat in 1986.(fn21) There had also been fifty-four attempts to recall state legislators, and one attempt to recall a member of the Board of Equalization. Seven of the attempts involving state legislators reached the vote stage and four led to recalls - one in 1913, one in 1914, and two in 1995.(fn22) At the local level, the recall had been used much more frequently in California. Although no complete data exist, studies indicate that at least eighty-one local officials were recalled between 1903 and 1929, and 396 between 1970 and 1979. The mayor of Los Angeles was recalled in 1909. In 1983, San Francisco Mayor Diane Feinstein survived a recall vote.(fn23)

The seventeen other states that allow statewide recalls have also used the procedure sparingly. Although there have been a number of efforts in other states to recall governors, only two collected sufficient signatures to force a recall election. In the first, in 1921, North Dakota recalled its then-sitting governor. In the second, in 1988, the Arizona legislature impeached the governor before a recall election could be held.(fn24) Like California, other states have used the recall much more frequently at the local level.(fn25)

Before collecting signatures, California recall proponents must file a petition with the secretary of state indicating their reasons for wishing to recall the governor.(fn26) The proponents may state any reason they wish. Except for the response that the governor is allowed to file, the law does not provide for any independent review of the reasons stated. After filing their petition, proponents have 160 days to collect signatures from registered voters equal to 12% of those who voted in the last gubernatorial election. The signatures must come from at least five of California's fifty-eight counties, and in each of these five counties the signatures must amount to at least 1% of the last gubernatorial vote for that county.(fn27) If the proponents are successful in collecting the proper number of signatures, the lieutenant governor is required to set the date for a recall election. This election must be held within sixty to eighty days from certification. If the recall is certified within 180 days of a regularly scheduled election, however, the lieutenant governor may schedule the recall at the time of the regularly scheduled election.(fn28) Two questions appear on the election ballot. The first asks "Shall _____________ be recalled from the office of Governor?" "Yes" "No."(fn29) The second lists the replacement candidates. The law does not permit the governor to run as a replacement candidate.(fn30)

Recalling a governor is easier in California than in most other recall states. Sixteen of the seventeen other states that allow recall of a governor require more signatures than the 12% of the last gubernatorial vote demanded by California.(fn31) Twelve require signatures equal to 25% or more of the last vote, one 20%, and two 15%.(fn32) Even Montana's 10% is in practice greater than California's 12% requirement. This is because Montana's percentage is based on registered voters rather than the number of voters at the last gubernatorial election.(fn33) Thirteen of the seventeen other states allow recall petitions to be filed only after the governor has served some portion of his or her term. Two set the minimum time at a year; seven at six months; two at four months; one at three months; and one at two months.(fn34) The original California recall, as adopted in 1911, required proponents to wait six months before seeking the recall of state-wide elected officers.(fn35) With little...