October 20, 2021, 22:14

How California’s bizarre recall system could elect a Republican governor

How California’s bizarre recall system could elect a Republican governor

If you haven’t been following California’s recall election battle, you might scoff at the idea that Gov. Gavin Newsom is fighting for his political life — and perhaps even to safeguard Democratic control of the US Senate. California is a deep-blue state, after all; could a Republican really win?

But the strange design of California’s recall system, and Newsom’s strategy for navigating it, make a Republican win more plausible than might be expected. That’s one reason the conservative activists who started the recall effort are pushing to remove Newsom from office this year rather than waiting until the 2022 election: They believe they have a better shot of winning now.

The first question voters will see on the ballot: Should Governor Newsom be recalled? Voters get to answer yes or no.

The second question: If Newsom is recalled, who should be his replacement? Here voters are presented with 46 candidates (Republicans, Democrats, and others) — but not Newsom. Mail-in voting has already begun, and in-person voting will take place September 14.

Here’s where it gets bizarre. Newsom needs to win a majority of the vote to stay in office. If he fails to get that majority, his replacement can win merely by being the top-vote getter in a crowded field. Two recent polls have shown conservative talk radio host Larry Elder (R) in first place with 23 percent of the vote — a small plurality that could still make him governor if Newsom loses the recall question.

It gets weirder. Newsom and top Democrats are specifically urging their voters to leave the replacement question blank. That makes sense as a political strategy: Newsom wants to frame the choice as between him and a Republican. But if Newsom loses the recall vote and many Democrats follow this advice, it will make it easier for a conservative Republican to get into office as his replacement, rather than a moderate Republican or one of the nine little-known Democrats in the field. Replacement candidates include 2018 GOP nominee John Cox (R), former San Diego mayor Kevin Faulconer (R), celebrity Caitlyn Jenner (R), and developer/YouTuber Kevin Paffrath (D).

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A Republican win would have major implications for the state’s pandemic response policies over the next year (the governorship will be up for election again in November 2022). But the biggest consequence could be national: The United States Senate is divided 50-50, and the oldest senator is 88-year-old Dianne Feinstein (D) of California. If she were to die in office, as octogenarians occasionally do, California’s governor would choose her replacement — and a Republican governor could flip control of the Senate to Mitch McConnell’s GOP.

Democrats are optimistic that all of these challenges will be overcome, and that the fundamental partisan dynamics of California will reassert themselves and save Newsom. Most polls show Newsom narrowly leading on the recall question. But that outcome can hardly be taken for granted. In oddly-timed elections, weird things can happen, as Democrats learned when Scott Brown won a Massachusetts Senate seat in January 2010, or as Republicans learned from Doug Jones’s Alabama Senate seat victory in December 2017.

So there is a possible slow-motion disaster unfolding in California for Democrats — but there’s also still time for them to avert it, if they can communicate the stakes to their base voters.

The weirdness of California’s recall system

The recall effort was launched by conservative activists who were generally dissatisfied with Newsom’s governance. The incident that got the most attention was Newsom flouting his own pandemic guidelines by dining maskless at the French Laundry restaurant last November, but conservatives also point to Newsom’s handling of the pandemic generally, the state’s serious homelessness problem, and a high level of unemployment benefits fraud. The motivation for the timing of this push, though, is likely that they think they have a better shot at winning in the recall than in next year’s ordinary election.

Now, in theory, the recall process is all about giving more power to the people so they can boot out politicians they think need to go. Who could be against that? But the devil’s in the details about just who “the people” happen to be, and how that choice is structured.

For one, to get the recall on the ballot, activists needed to meet a relatively low signature threshold: 12 percent of the voters who turned out in the last governor’s election. Even in a deep-blue state like California, 38 percent of voters backed Newsom’s GOP opponent last time around, so with the proper shoe leather and funding, that wasn’t a very hard threshold to meet.

Turnout is another issue. The nature of a recall means it’s an election that happens at an odd time, and oddly-timed elections can have a different electorate, in which those who are more fired up are more likely to turn out. So in practice, what the recall can do is give an impassioned minority of voters a chance at scoring an unexpected victory, due to low turnout from the less-engaged majority. (Though it doesn’t always work that way — turnout ended up being higher in the 2003 recall than in the governor’s election the previous year.)

The handling of the replacement candidates is also unusual because, unlike in typical elections, there are no primaries beforehand in which the field is sorted. So this time around there are 24 Republican candidates, 9 Democrats, and 13 others from third parties or with no party preference. With only a plurality necessary to win if Newsom loses the recall question, and no runoff, this poses the possibility that someone with a small slice of the vote would end up governor. This thrills conservatives, since a conservative candidate would have little chance of winning a typical two-candidate California election.

Another feature of the system takes away one possible choice from voters: Newsom is prohibited from appearing as a replacement candidate. That creates the strange asymmetry where Newsom needs a majority on the recall question to stay in office, but his replacement does not need a majority to be elected.

Put another way: If Newsom loses the recall question 51-49, and his replacement wins with 30 percent of the vote in a split field, would that really be what “the people” wanted? In that scenario, more Californians would have wanted Newsom than any one other candidate. Of course, it’s inherently tougher for a replacement candidate to get a majority since they have so much competition, but that only drives home how odd it is that these two differently-designed election systems are juxtaposed.

Why does California do things this way?

Like the other notable “direct democracy” feature of California politics — the state’s frequently-used ballot initiative and referendum system — California’s recall system was created in 1911, during the Progressive Era. Contrary to the modern-day use of “progressive” as a term for those on the left, these capital-P Progressives were “an anti-party, anti-partisan, anti-special interest movement of reformers” in both parties, says Raphe Sonenshein, a political scientist at Cal State LA.

In California, Progressives were mainly concerned with corruption — specifically, the enormous influence of the Southern Pacific Railroad over state politics. But to build a “big tent” coalition to win power, these anti-corruption reformers sought allies. And one valuable ally was John Randolph Haynes, a wealthy doctor and investor who had an idiosyncratic interest in issues of direct democracy.

Haynes had studied direct democracy examples from around the world and from history, and he was taken with the idea that giving the people more power over politicians and lawmaking would improve society, according to an article by historian John Allswang. So he founded a group called the Direct Legislation League, and had already helped make Los Angeles the nation’s first city to give its voters the recall power back in 1903. (Voters approved it overwhelmingly, along with the ballot initiative and referendum reforms.)

So when a faction of California Progressives later launched an effort to take over the state’s Republican Party, they found Haynes’s money and organization helpful, and incorporated his proposals into their platform with little debate. Haynes “often seemed the only person in California who really cared about the initiative, referendum, and recall,” Allswang writes.

Progressive Republicans took over the state party and won the governorship, and they set about enacting their agenda in 1911. The legislature approved Haynes’s reforms and other sweeping changes, including women’s suffrage. Those reforms were put to a statewide vote later that year, and again won overwhelmingly. Haynes had put the idea on the agenda, but it was clear voters quite liked the idea of giving themselves more power.

The reasons for the specific design of California’s recall system are murkier. For instance, historian Tom Sitton says that the recall system Los Angeles created a few years prior allowed the incumbent to run as a replacement candidate. But when the state-level reform was drafted, a provision prohibiting that was included, and it’s not clear why the change was made.

The other notable choice was not requiring a runoff for the replacement candidate — letting a new candidate win with just a plurality. One possible motivation here is to save on money: A statewide election is expensive; a recall already adds one new costly election, and a runoff would add another. Another possibility, Sonenshein speculates, is that drafters may have wanted the recall process to be “as simple and quick as possible,” limiting “shenanigans” of any kind from the recalled incumbent.

Newsom’s risky strategy

The recall did not revolutionize state politics immediately. A few state legislators faced recall attempts in the 1910s, but then nobody successfully got a recall on the ballot again for another 80 years, when ideological conservatives embraced the tool to try and oust state legislators who’d taken positions they disliked.

But the person who first put a gubernatorial recall on the ballot was Rep. Darrell Issa (R-CA), who funded a push to oust the unpopular Gov. Davis in 2003. Issa’s key insight was that, with modern communication technology, the signature-gathering requirement was trivial as long as you were willing to spend the money to pay organizers. So he spent big, intending to run for the office himself. In a Hollywood twist, though, Schwarzenegger jumped in the race, and, knowing he couldn’t compete with Arnold’s celebrity, Issa tearfully quit.

In the end, 55 percent of voters opted to recall Davis. Among a crowded field to replace him, with over 100 candidates, Schwarzenegger won 48 percent of the vote. That wasn’t quite a majority, but another Republican candidate got 13 percent of the vote, so together well over half of voters wanted a Republican. And Schwarzenegger governed as a moderate, winning an easy reelection in 2006.

Newsom’s situation is different in many respects. He is more popular than Davis was at the time, and there is no formidable celebrity like Schwarzenegger in the race. (Caitlyn Jenner is running, but she has not been doing well in polls.)

But he still faces the inherently difficult challenge of winning a vote between “Newsom or not Newsom” — which is much more difficult than a typical election, when the choice is between one politician or another politician.

As a result, Democrats have tried to reframe that choice as being really about “Newsom or Republicans.” They made sure no credible Democrats entered the race as a replacement candidate (unlike in 2003, when Lt. Gov. Cruz Bustamante jumped in). The nine Democrats who did make the ballot this time are all little-known, with 29-year-old developer and YouTuber Kevin Paffrath being the only one who’s gotten some attention.

Democrats are going even further in trying to draw a contrast. They’re outright urging voters to leave the replacement question blank, even though voting on it would not hurt Newsom in any way.

Ballots for the radical right-wing recall will begin to be mailed out on Monday. Remember: vote NO on question 1, leave 2 blank, sign, date, seal & return. IT IS CRITICALLY IMPORTANT THAT WE ALL DO OUR PART TO DEFEAT THIS DANGEROUS POWER GRAB.

— Alex Padilla (@AlexPadilla4CA) August 15, 2021

The calculation seems to be that Democrats don’t want anyone thinking about a second choice or a backup plan. They want the election to be a choice between Newsom and Republicans, and they think this message will most effectively communicate that choice.

But it’s not advice that actually makes sense for individual voters, who are being asked to voluntarily forfeit their say over who the next governor would be if Newsom loses. Do they really want to hand the state over to Larry Elder, a far-right conservative, rather than Paffrath, who is at least a Democrat, or Kevin Faulconer, the former San Diego mayor who is a moderate Republican and at least has governing experience?

And if large numbers of Democrats do abstain from the replacement question, the math for a Republican victory gets even easier — again, since only a plurality win is necessary.

It’s hard to avoid the suspicion that state Democratic leaders might prefer, if Newsom loses, to have a deeply conservative Republican in the governor’s office, who would be easier to beat in 2022.

But Democratic voters who care about the state’s governance over the next year — or about whether the US Senate remains in Democratic hands — might think it best to fill out the whole ballot, to have a backup plan. Just in case.

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