“According to a UC Berkeley Institute of Governmental Studies poll cosponsored by the Los Angeles Times released Friday, 60.1% of likely voters surveyed oppose recalling Newsom compared with 38.5% in favor of ousting the governor. Fewer than 2% of likely voters remained undecided or declined to answer, suggesting the issue is largely settled in the minds of California voters.”
Since my last polling update in this race, some interesting things have happened. A few new polls have found the gap widening in favor of Newsom. With the new IGS poll (see above LA Times quote), the current FiveThirtyEight polling average is 14.4 points in favor of keeping Newsom as governor (see chart below). There is a lot to chew on in the latest polling data, so I will be posting a Part IV (or maybe it’s Part IIb, since it will be another polling update). I expect more polling over the weekend, so look for the post on Monday (the day before the election).
Source: FiveThirtyEight
Recalls, like initiatives and referendums, were populist “good government” reforms enacted in many states – mostly in the West – around the turn of the 20th Century. The idea behind them was that political machines and special interests controlled politics and giving voters more direct democracy was a way to hand power “back” to the people.1 In practice, these reforms have in fact made special interests even more powerful.
The recall is a reform that has played out differently in the United States than in Europe. In the US, the recall was a function that existed in colonial governments and was closely associated with the concept of “instruction.” Instruction is the idea that a representative’s job is to vote the way his or her constituents or appointing body instructs. Where representatives were appointed by legislative bodies, the recall and instruction were closely aligned – the recall being the mechanism by which the legislature could hold an appointee to account for failing to vote as instructed. The legislative recall was the way to interrupt fixed terms of office. The founding generation considered recall an essential, perhaps even inherent right of the legislature (although legally it is not). There was an unsuccessful debate in the Constitutional Convention to add a right of recall to the Constitution, especially for Senators who were to be appointed by state legislatures instead of elected directly by voters.
In Europe, the recall was closely associated with socialism and Marxism (including Marx himself, who argued for it). In the US, the recall was first an institutional then later a populist measure. While American socialists may have supported the reform, it was never associated with Marxism the way it has been in Europe. Populists in America referenced the founding generation as being support for the recall as a return to traditional democracy – something that founders who supported a right to recall did in reference to the use of recall in the Roman Republic.2
California’s recall election law is particularly odd. The state has several elected statewide offices, including an independently elected Lieutenant Governor. The main role of any Lieutenant Governor to assume the duties of governor when he or she is out of the state and to fill any vacancy in the number one position should one arise. California’s constitution clearly states that the Lieutenant Governor fills a vacancy in the Governor’s office.3 The recall process is also a constitutional one, but the details are filled by statute. So far, so good. If the governor gets recalled, that creates a vacancy which is filled by the Lieutenant Governor right? Wrong. The statute directs a second vote taken at the same time as the recall vote to decide a replacement governor. This is, in fact, something contemplated by the California Constitution but not required by it.4
That second vote is a simple non-partisan plurality vote. This means that the governor can be replaced by a candidate who gets less support than he or she did. So, while the recall and the replacement question are sanctioned in general by the state constitution that does not mean that the statutory scheme for the replacement vote does not violate the federal constitution. In fact, in 2003 during the recall of Gov. Gray Davis (D), a federal judge ruled that part of the replacement election statute was unconstitutional - the law had disqualified voters who voted No on the recall from casting a vote on the replacement question. The statute is poorly drafted, can create bizarre and possible unconstitutional results, and begs the question of why California has an independently elected Lieutenant Governor in the first place.
Considering that Davis was recalled in 2003 and replaced by Arnold Schwarzenegger (R) one would think the Legislature would have fixed the replacement election problem. In 2003, although they were not running head-to-head, Schwarzenegger did get more votes than Davis did.5 That prevented a legitimacy crisis. But it could easily have come out differently. Legislators should not wait until the foreseeable worst happens before acting. However, in this country we often see people complaining that putting up a stop sign at a dangerous intersection is unnecessary until someone is killed. Then, they demand to know why the government never put up a stop sign. If Newsom is recalled and the replacement governor gets fewer votes (and he or she will this time; it’s almost a guarantee) that will be the political analogue of the stop sign dilemma. Long-term there are only two good. Let the Lieutenant Governor become governor, either temporarily until a special election can be held or permanently until the next regularly scheduled election.
Neither of those solutions will work this time as the law is set. So, what can be done if, say, Newsom loses the recall vote in a squeaker with 5 million votes and the replacement governor gets 2 million votes? This is likely why Newsom’s team wants supporters to skip the second question. Voting on the second question helps provide the winner with a degree of legitimacy, especially if – like in 2003 – the replacement winner gets more votes than Newsom gets on the recall question. The replacement election is further delegitimize if a large number of voters abstain while voting on the recall question. It is a way for voters to say that they think the replacement election is not legitimate.
A public declaration of illegitimacy is also why the Newsom team discouraged a serious Democrat from running in the replacement election. But there was a practical reason as well.
Many Democrats believe – a bit incorrectly in my opinion – that the entry of Lieutenant Governor Cruz Bustamante (D) into the 2003 replacement election for the recall of Gov. Gray Davis (D) gave voters a safety valve for voting for the recall. In other words, a serious Democrat on the replacement ballot eliminates a disincentive for Democrats vote for the recall. It’s impossible to know the counterfactual for 2003, but we must remember that Davis was very unpopular (polling in the 20s), he lost by 10 points and almost a million votes, and Bustamante came in a distant second in the replacement election. Newsom’s team might be right that this time a serious Democrat would tip the balance, but I don’t think that was true in 2003.
Abusing the recall process is one of the latest strategies by the Right to undermine confidence in our system and refuse to accept democratic outcomes. We are seeing recalls pop up all over the country against progressive elected leaders. This is costly and sows chaos. It is an abuse of process – recalls should be reserved as a last chance effort to remove a criminal or dangerously incompetent public official. There is reason to believe that the number of recalls on local officials such as school committee members and district attorneys are a coordinated effort by the right-wing to destabilize democracy, distract and prevent duly elected progressive - and even just rational, regardless of political affiliation - officials from doing their jobs, act out petty revenges, and attempt to take over government through abusing the process since they increasingly cannot win free and fair elections.
Two California voters have filed a federal lawsuit to stop the recall election. They argue that the replacement vote process violates the federal constitution violation, specifically the Equal Protection Clause of the 14th Amendment. The plaintiffs in this case have used the legal theories that noted constitutional law professor Erwin Chemerinsky put forward in his New York Times op-ed piece. The recall election violates the one-person, one vote standard by (1) allowing fewer votes in the replacement election to be weighed more heavily than greater votes cast in the on the recall question – even in a losing effort – and (2) not allowing voters to choose Newsom on the replacement governor question. On August 27th US District Court judge Michael W. Fitzgerald denied the plaintiff’s motion for declaratory relief and preliminary injunction. An appeal was filed with the Ninth Circuit Court of Appeals on the same day. Neither Newsom nor the Democratic Party joined the lawsuit (that could change if Newsom loses the recall but gets more votes than the winner of the replacement election).
I am not sure how that lawsuit will eventually turn out,6 but there is a more direct process that can be used that does not change the law: impeaching and removing the replacement governor. California law suggests a higher standard for impeachment in California than in the federal constitution,7 however as we’ve discussed previously impeachments are inherently political processes. I have found no case law in California on what “misconduct” is in the impeachment context (for governor, at least). Once Legislature has impeached and removed the replacement governor, the Lieutenant Governor will become Acting Governor until next year’s regularly scheduled election. Not only does this solve the legitimacy crisis, but it allows the referendum on Newsom to be respected.
This is something that everyone should be taking seriously. The US Senate is tied 50-50 between Democrats (and their Independent allies) and Republicans, with the Democrats controlling as a result of Democratic Vice President Kamala Harris. California Sen. Dianne Feinstein (D) is 88 years old and reportedly not in good health. If a Republican replaces Newsom next week and Feinstein passes away or steps down for health reasons in the next year, the Republicans will take control of the US Senate 51-49. All progressive legislation at the federal level will halt. All of President Biden’s appointments will be delayed, and judicial appointments will likely be held up forever. These are the real stakes in this race.
We don’t expect politicians in this country to do the selfless thing. Nevertheless, there is one thing that Newsom could have done to halt the recall in its tracks. He could have resigned. If he had, the recall would have been moot and Lieutenant Governor Eleni Kounalakis would have become governor. I suppose this would have been more likely if (1) Newsom was facing the polling results that Davis was in 2003 and (2) Feinstein could have been persuaded to step down so Newsom could have appointed her replacement. To be clear, I am not arguing that Newsom should have resigned. But if in the past couple of weeks it looked like he was going to lose come, he should have considered it for the best interests of California and the country. However, the current polling suggests resignation would be an overreaction and give the right-wing what it wants even though they do not have the votes to recall the governor. Today’s latest poll from the IGS finds 60% opposing the recall and that almost all likely voters have already made up their mind.
On Monday, we’ll review the final polling in this race.
Political slogans in this country have forever been promising a return to some ideal democratic period that is wholly imaginary, a “nostalgia for a time that never existed,” as Jello Biafra & Mojo Nixon would put it.
For the history of the recall, see generally The Politics of Recall Elections (Y. Welp & L. Whitehouse, eds.)(Palgrave Macmillan 2020). In particular, consult chapter 3 (M. Qvortrup, “The Political Theory of the Recall: A Study in the History of the Ideas”) and chapter 5 (J. Spivak, “Recall Elections in the US: Its Long Past and Uncertain Future).
“The Lieutenant Governor shall become Governor when a vacancy occurs in the office of Governor.” Calif. Const. Art. V, Section 10.
Calif. Const. Art. II, Section 15(a).
Thanks to the July 2003 ruling of US District Court Judge Barry Moskowitz and the decision not to appeal his ruling by Secretary of State Kevin Shelley (D), all voters were permitted to vote on replacement question regardless of how they voted on the recall question. The issue of whether voters can vote in the replacement election is considered settled now.
The lawsuit will be mooted if Newsom wins next week.
“State officers elected on a statewide basis . . . are subject to impeachment for misconduct in office.” Calif. Gov. Code Art. II, Section 3020.