Journalism legend: California’s recall vote does violence to the spirit of American election law

As a reporter, I have to know who the governor of California is. He, or she, is the chief executive of a state where one out of every eight Americans lives, and has an economy that would be one of the world's largest if California were a country. When it comes to who the governor of California should be, I have no opinion that matters. I am a former California resident, who has long voted in other places. What California voters choose, they get.

As an American, however, I do have an opinion about the process the state is undergoing right now. The law that sets out the mechanism for removing a Golden State governor is anything but golden. It is bad for democracy, bad for California and only encourages bad behavior among opposing political forces.

In the days after September 14, some 40 million Californians and 290 million of the rest of us will find out if Gavin Newsom keeps his job. To drag him in front of the state's voters once again took a massive signature-gathering effort, requiring the collection of at least 12 percent of the total vote cast for the office in the previous election. When the secretary of state, California's chief election officer, certified the collection of more than 1.7 million signatures, the lieutenant governor was required to schedule an election in 60 to 80 days. Inside the state, this machinery is pretty familiar. It was used to unseat another Democratic governor, Gray Davis, and replace him with Arnold Schwarzenegger in 2003.

The choice of the largest single portion of voters can say with their ballots, "We do not want to remove this governor," only to find themselves "outvoted" by a fraction of that number.

The recall is, crucially, a two-step process. It asks the voters, in effect, a) "You want this guy to keep his job?" and b) "If you don't, who then?"

That's where it starts to get really difficult.

The first vote requires a sitting governor to attract 50 percent-plus-one vote of the total cast. The second vote is first past the post. The winner is the person who garners the most votes in Round Two. So, it is not entirely out of the question for Newsom to attract 49 percent of the vote, losing his seat, to be replaced by one of the 46 second round candidates who is "chosen" governor by 15 percent of the voters.

The great free-for-all of California's referendum system makes it very easy for anybody who thinks they might see a future governor in the mirror to run in the second part of the ballot, but bars the governor himself, or herself, from appearing there.

Thus, the choice of the largest single portion of voters can say with their ballots, "We do not want to remove this governor," only to find themselves "outvoted" by a fraction of that number.

Newsom opponents, the California GOP, and people who just like to watch this car-wreck unfold, will tell you this is all according to the rules. And they're telling you the truth. The signature drives, the enormous number of candidates, the two-step procedure, it's all set out in state electoral law. Newsom attempted to get his name into the second round but missed a filing date and on appeal was barred from appearing on it.

John Cox, the Republican who lost to Newsom in the last gubernatorial race by nearly 24 percent, is on the second-round ballot. So is Caitlyn Jenner, former world-ranked athlete, reality-television star and political neophyte. Larry Elder, a radio talk-show host and late entrant into the scrum, is among the top polling candidates to replace a governor polling around the 50 percent mark, with around 20 percent of the vote.

Regardless of party affiliation, regardless of who the individual personalities are and individual calculations of advantage, one thing is clear: when a small number of voters can thwart the will of a much larger number of voters, especially on the question of removing a legally elected office-holder, it does violence to the spirit of American election law. And yeah, yeah, yeah, not to the letter of the law.

The recall process, like California's famous or infamous ballot measure system, is a legacy of the Progressive Era of a century and more ago. Vast in size and potential wealth and small in population, California tried to empower voters against the industries that held disproportionate power there, including railroads, mining and oil interests.

If an executive, or legislator, was sent to Sacramento and found not to be doing the people's will, why not have the machinery to replace him? (And to be sure, back then it was always guaranteed to be a him.) These vast earthquakes in state government can be triggered on a whim, by an individual citizen ready to spearhead an effort to remove a disdained official, by a homeowner with a fire in his belly about property taxes, a millionaire pissed off about bilingual education, or now, by a deep-pocketed business ready to spend high to keep its costs low.

The recall process can create a coalition of the aggrieved: Newsom may be disliked by some for his breezy Bay Area liberalism, his climate change proposals, or his approach toward controlling the COVID-19 outbreak in the nation's largest state. By triggering the vote in a time away from primaries or elections for other offices, Newsom's opponents need only arouse the most motivated voters, while arguably millions of California's rank-and-file stay home, or fail to mail in a ballot that might save Newsom's governorship.

If Newsom survives the onslaught, he might want to make sure a future governor does not face his current predicament. Tinkering with the machinery of the recall process, for example, to require that an unsuccessful incumbent seeking retention automatically appears on the second round ballot, would go a long way toward preventing next week's entirely possible trashing of the principle of one person, one vote.

By long custom, we elect officials to serve in their offices for set terms. There are no snap elections called by prime ministers, no ability for voters to suddenly decide they only like a US senator for four years instead of six, or a mayor for three years instead of four. Don't like the job he, or she, is doing? We've been trained by long experience to simply look elsewhere when the end of a term rolls around.

Tinkering with the machinery of the recall process, for example, to require that an unsuccessful incumbent seeking retention automatically appears on the second round ballot, would go a long way toward preventing next week's entirely possible trashing of the principle of one person, one vote.

What is the lesson to a California politician? Granted, they include "don't go to a fancy restaurant for a party that appears to violate your own pandemic lockdown rules." (Noted.) But seriously, after two removals in less than 20 years, what future governor will want to try anything hard? What future governor will ask a state for sacrifice of any kind, when a twelfth of a fraction of the population that votes can force you to face another election in the middle of your term? What governor will lead a state by making necessary, but in the short term unpopular decisions, if she can be forced to scramble to save her job, faced by a candidate who might take it with significantly less support?

It's your state, Californians. It's your constitution and electoral system. Not mine. But democracy belongs to us all. It is looking a little fragile right now, as a US senate caucus chosen by a minority of voters continues to enjoy absolute veto power over the agenda of an opposing caucus, one favored by a far larger share of American voters.

When the normal rules of win-and-lose and try-next-time can be short-circuited by power plays defying the will of the voters, it creates cynicism about the people's will, and how that will is assessed.

In two pivotal states, North Carolina and Wisconsin, state legislatures sought to reduce new governors' powers because the legislative majority opposed them politically. In Wisconsin, the case was even worse, because the Republican majority in the legislature was a creature of map-rigging, an unstoppable force elected by a pronounced minority of voters.

If the beefs that begin in states make their way to the Supreme Court, a petitioner will face a court whose majority was chosen by presidents who won office without winning the popular vote, but had their election ratified by an Electoral College that magnifies the disproportionate power given to small and rural states.

Political scientists and theorists have told us for generations that the genius of the American system is that the minority gets a say. The buy-in of all parties comes from the ability to influence outcomes, and resist brute force majority rule. The founders and framers might have found a lot to like in principle, but I wonder what they would have so say about a winning candidate with 25 percent of the vote "beating" a candidate with 45 percent of the vote.

Watch California closely on September 14.