The Davis Recall and the Courts

• Author: Kenneth P. Miller
• DOI: 10.1177/1532673X04272729
• Published date: 01 March 2005
• Date: 01 March 2005
• Subject Matter: Articles

10.1177/1532673X04272729AMERICAN POLITICS RESEARCH / MARCH 2005Miller / THE DAVIS RECALL AND THE COURTS

THE DAVIS RECALL AND THE COURTS

KENNETH P. MILLER

Claremont McKenna College

The recall of California Governor Gray Davis generated intense litigation as recall opponents

sought, without much success, to convince courts to block, modify, or postpone the election.

Using an interpretive case study approach, this article analyzes these outcomes and develops the

theory that the courts’reluctance to intervene in the Davis recall process was largely dictated by

the nature of the recall deviceitself. More specifically, the recall’s only substantivequestion was

nonjusticiable, so litigants were limited to procedural challenges, and on most of the procedural

issues,courts deferred to local election officials. The constraints on judicial review of recall high-

light differences between recall and initiative, a direct democracyprocess courts more actively

check.

Keywords: direct democracy; California recall; Gray Davis; Arnold Schwarzenegger;

governors; initiatives; election law

The recall of California Governor Gray Davis and election of

Arnold Schwarzenegger is the most dramatic state-level political

event in memory.The recall process began as a long shot in February

2003 when a small group of poorly funded, anti-Davis operatives

served Davis with a “Notice of Intention to Recall.” Over the next sev-

eral months, however, the movement gathered broad-based support.

By mid-July, more than 1.6 million Californians had signed recall

petitions, more than satisfying the qualification requirements, and the

lieutenant governor set a date for the recall election. On October 7,

voters removeda governor at midterm for only the second time in U.S.

history, and for the first time in more than 80 years.

As the recall drama unfolded, an important subplot surfaced in the

courts. Antirecall forces mounted an extraordinary range of legal

challenges against the process in state and federal courts, and for a

time, it appeared the recall process might be halted, modified, or at

least delayed. Indeed, on September 15, after thousands of voters had

AMERICAN POLITICS RESEARCH, Vol. 33 No. 2, March 2005 135-162

DOI: 10.1177/1532673X04272729

© 2005 Sage Publications

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already cast absentee ballots, a three-judge panel of the U.S. Court of

Appeals for the Ninth Circuit issued an order provisionally enjoining

the secretary of state from conducting the election. The three-judge

panel’s decision threw the recall process into confusion for 8 days

near the end of the campaign. A full complement of the Ninth Circuit

undid the judicial intervention, however, by vacating the injunction,

and on September 23, a limited en banc panel issued a decision allow-

ing the recall election to proceed as scheduled, ending weeks of

uncertainty generated by the intense litigation.

This article analyzes the courts’ involvement in the fight over the

recall of Gray Davis. The article provides an account of the recall and

the litigation surrounding it, then interprets these events to analyze

why, on the whole, courts exercised restraint in this fight and, more

generally, to developtheory concerning the recall process and the role

of courts in supervising direct democracy.

METHOD AND THEORETICAL FRAMEWORK

Verylittle research exists on judicial intervention in the recall pro-

cess, in part because high-profile statewide recalls are rare events.

Although a number of states have allowed citizens to recall public

officials for nearly a century, only two governors besides Davis have

faced removal by this method. In 1921, South Dakota voters recalled

Governor Lynn J. Frazier1; more than six decades later, in 1988, Ari-

zonans qualified a recall against Governor Evan Mecham—but the

Arizona legislature impeached the governor before voters could

remove him by recall vote (Zimmerman, 1997). Recalls of other

elected state officials are only slightly more common. In California,

for example, seven state legislators have faced recall elections, and

voters removed four of them from office (Spivak, 2003b). In Califor-

nia, as in some other states, the recall device has been used most fre-

quently at the local level, where local election laws often govern the

process (Zimmerman, 1997).

Because removal of a governor through the recall device is an

almost unprecedented event, I havechosen to analyze the Davis recall

and the litigation challenging it using an interpretive case study

approach. More specifically, in this article, I describe the basic fea-

136 AMERICAN POLITICS RESEARCH / MARCH 2005