August 7, 2003 · Lessig
So if this California recall succeeds, then more likely than not the Governor who replaces Gray Davis will have received fewer votes than Gray Davis. Davis could get, say, 49.9% of the vote, and would be “recalled.” But his replacement is chosen with a simple plurality. Thus, in a field of 200+ candidates, it is more likely than not that the replacement governor will have gotten fewer votes than the governor he replaces.
Which of course reminds one of another election — the 2000 presidential election, where again, through a special rule in the Constitution, the executive who won had fewer votes than his opponent. Though President Bush won in the Electoral College, he plainly lost the popular vote. Nonetheless, because of a constitutional provision (and an overly activist Supreme Court), the candidate with fewer votes won.
In both cases, the results are consistent with the letter of the law. But one might well ask whether they are consistent with the spirit of democracy. No doubt there is still strong support for the (imho outdated) institution of the Electoral College. So Bush’s victory (forgetting the Supreme Court’s role for a moment) is not only consistent with the letter of the law, but consistent with an institution that at least some believe makes sense.
But the same can�t be said for the California recall provision. Whether or not you believe in the power to recall, the California provision is insanely stupid. It makes no sense to decide the winner on the basis of a plurality. This is just a badly crafted constitutional provision — a kind of constitutional loophole. It’s the sort of clause which we fail people for writing in constitution-drafting classes. (No, there are not really any constitution drafting classes, but clearly there should have been in California at the beginning of the last century).
Yet it is one thing to have a bad clause in a constitution. It is quite another to rely upon it to become the Governor of a state as important as California. Whether Republican or Democrat, there is something deeply wrong about taking advantage of a constitutional mistake to become governor of one the most important states in the nation.
I can’t understand why the Democrats, or at least why the Davis supporters, don’t make this point clear. And more importantly, I can’t understand why Governor Davis doesn’t at least nominate a protest candidate — a candidate who says (1) this election is wrong, and (2) whether you like Davis or not, you should vote not to recall him on the basis of a constitutional mistake, and (3) after you vote not to recall him, you should vote for the protest candidate. That candidate would promise not to run for reelection — or for any office in California, since no one should benefit politically from a constitutional mistake — but would hold the governorship �in trust� until we have another election where the candidate with the most votes wins.
One might say, who could possibly resist such a loophole. That whether it is honorable or not, what politician would forgo the chance to become President or Governor, regardless of the means?
Yet we should remember that many believe that Nixon made essentially this choice when he refused to fight the results in Illinois and thus let Kennedy become President. In his moral universe, that’s not how an executive should become an executive.
It is a measure of this Enronera that neither our President nor over 200 candidates in this California recall election live up to the moral standards of even Richard Nixon. By whatever means, they will claim power.