How is California's recall law constitutional?

Unless I totally misunderstand, the law requires the sitting governor to get an absolute majority in Part 1, but if he doesn’t, he’s replaced by whoever gets a simple plurality in Part 2, and that can’t be him. So, the incumbent could be the preference of 49.9% of the electorate, but would still be forcibly replaced by someone with as little support as 5% or so. No question that’s one screwy law, right?

But it’s worse than screwy, ain’t it? How is it not a violation of the equal-protection clause that the rights of the 5% or so of the people trump the rights of 49.9%? I do understand that Davis is suing to get his own name added to the cast of thousands in Part 2, but I don’t know his basis (other than keeping office). Is that what he’s arguing? If not, what should be the constitutional arguments here?

The law doesn’t prevent you from being in that relevant 5% if you choose, so I don’t think equal protection applies.

The way I understand it to be, is that California’s Constitution details the whole ousting process quite detailed.

The first round, you simple vote yes or no to the question, “Should Governor Davis be recalled?” If the majority votes “no,” you stop there. If the majority votes “yes,” then you move on to part two.

In part two you vote for who you would like to be Governor. The majority here wins. If Davis is the Democrats’ choice to run in this election, then he gets the majority of the vote, it is as if he just won a brand new election fair and square, and his time starts over. If someone else gets a majority, then he is gone.

I still don’t understand why the Lieutenant Governor doesn’t just become Governor if the recall passes. :confused: Poor Mr. Bustamente.

That’s not correct. Davis is barred from running in phase 2; in fact, he is suing to be included in phase 2. I don’t know if it’s unconstitutional, but it’s certainly unfair the way it is.

Well, if California’s Constitution spells that out, then it cannot be unconstitutional under state law.

And I fail to see where the Federal constitution addresses the issue. To quote Mr. Justrice Potter Stewart in one of Dewey Cheatem Undhow’s favorite quotes (I think):

I think that would have been a more logical law, especially since the Lieutenatn Governor is elected separately from the Governor. Too bad the law wasn’t written that way.

However, I can understand why the recall law doesn’t provide for a runoff. Once the old Governor is recalled, it’s important to have a new one ASAP.

Another alternative that’s better than the current law IMHO would be a runoff if no candidate gets above some high threshold. I think a runoff and a few weeks with the LG as acting Governor would be preferable to the possibility of electing someone with a tine percentage of the vote.

However, the people of California voted for the current law, so that’s what they’ll have to deal with.

I think the Constitutional bit of contention in the OP is that it violates the 14th amendment (the last bit in particular, and this isn’t the whole thing):

I think it should be decided by chug-a-lug. It’s no less daft than the silly season that Calfornia is pulling right now.

Is the California law drastically different (from an Equal Protection point of view) from term limits for state officials? Term limits forbid a person from running for office altogether based on previous tenure in the office. The California law treats Davis differently because he is the incumbent subject to recall. I’d be surprised if the federal courts see it as an Equal Protection violation.

The Dems are actually challenging the constittionality of this part of the recall process. The Lt Gov solution seems easier. But it’s really not practical to have so many elections so close together (as per December’s post). It’ll cost something like $30M for this election. If we had to have another runoff right after that it’d probably cost that again.

We may find that this whole recall deal is not a good idea. The process closes on Saturday for declaring oneself a candidate.

But I don’t think it’ll be as bad as some suspect. Im guessing Davis will get recalled, and someone like Riorden will get elected. In a local paper story today, some Dems were quoted as liking Riorden more than Davis.

Although what you just said is technically correct, in fact, you’re mixing two different groups of “the people.”

The People who voted for the Initiative, Referendum, and Recall, back in the 1920’s, are scarcely represented among The People alive today!


Neither do I. In fact, as I read the California constitution, this is exactly what should happen. The provision for recall provides,

Art. 2, Sec. 15

When is it appropriate? It’s appropriate when there is no legal successor or there is no mechanism already in place to appoint a successor.

The Lt. Govenor is already the legally designated successor.

Art. 5, Sec. 10.

AFAIK, nobody suggests that you have to have new election when a govenor is impeached by the legislature. I see no compelling reason to have one when a govenor is impeached by the people.

Oddly enough, I have not seen anyone in California making this argument. It certainly is a colourable one at least. I would have thought Bustamante would have jumped on this. What am I missing?

It’s not an equal protection violation because more than half the people who voted have, in effect, decided that they prefer anyone for govenor rather than Davis. It would be a real equal protection violation if 60% of voters were in favour of throwing Davis out but 40% of the voters could re-install him as govenor anyway.


I did hear mention of this - the commentator called it a potential “Cruz d’etat”, since if I remember he (Bustamante) might have been able to declare this interpretation and set up a recall-only election. There seemed to be some implication that the public outcry would be too great, and, as much as he’d love being governor, Bustamante wouldn’t want to take power this way (though I don’t think they had any quotes from him on that).

Yeah, Bustamante floated that idea and it sunk pretty fast.

As I recall, Bustamante floated the idea of holding a recall elections and then scheduling another election if the recall passed. This would have 1) made him govenor for about 5 months from the date of the recall to the date of the new elections and 2) made it much easier for the Democrats to respond. They could have stood united to oppose the recall and then decided to field a candidate once the recall passed. Now, instead, they are faced with a tough and unpleasant choice – leave the field to the Republicans or field a candidate and sign Davis’ political death warrant, not that he’s not already on life support now.

Under my interpretation, there would never be another to replace Davis. Anyway, it’s not what Bustamante says is politically expedient, it’s a legal question. Someone could raise this argument in court whether Bustamante likes it or not.


BTW, there isn’t so much a contradiction if you think about the reality. The recall has to get a absolute majority because it’s a binary question-- Yes or No. But the follow-up election is just like any other election in that the most votes wins, even if it’s not an absolute majority. The chaos that can ensue is because the parties don’t have primaries so there could be any number of people from the same party running.

It’s going to be interesting to watch.

I have no sympathy for Davis in this matter and do hope the recall procedes, but I have to say the process is pretty stupid logistically. You put enough candidates on the ballot and a very small percentage could easily win. Someone virtual unknown from one of the bigger cities could rally some large, quick support in their hometown and become governer. Of course, if they screw up OR people are just really in an uproar about a poor choice, there could be another recall. This could end up like the USSR in the 1980’s. Didn’t they end up with like 3 presidents in 6 months or something?

But that doesn’t show that the 49% prefer the incumbent. It only shows that they oppose the recall. There are folks who oppose the recall and still think Governor Davis is a complete boob.