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 No doubt there is still strong support for the (imho outdated) institution of the Electoral College.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.

  • http://theshiftedlibrarian.com Jenny Levine

    There was such a candidate, although he just withdrew since Bustamante entered the race.

    Brian Flemming for Governor
    http://www.slumdance.com/flemmingforgovernor/

  • Eric Anderson

    Intuitively obvious to the casual observer: The founding fathers built rules into our system to avoid direct democracy or even slavish adherence to the majority. For North Dakota to have the same number of senators as California or New York is obviously not “fair.” This unfairness is of a much higher order than any “unfairness” in the electoral college. If we want to move toward more direct democracy and slavish adherence to a simple majority, then that is a better place to start.

    As for California, I strongly believe in a state’s right to have stupid laws. I believe in diversity, because a large degree of experimentation among the states might lead to the discovery of some very exciting innovations. How many substances did Thomas Edison try before he found the “right stuff” for a workable incandescant light bulb? Thousands.

    The other states can learn from California’s errors, I hope.

    Personally, I wish our state (Iowa) had a recall. But we aren’t even allowed referenda, unless approved by the legislature.

  • Karl

    Professor,

    I think this is an interesting discussion of a question I too have been dwelling on lately. I think, however, it is vulnerable at a fundamental level. There idea of one (wo)man/one vote has never really been applicable in this country. From the beginning of our Republic there has been an overarching principle, the futher government is from direct contact with the people, the further the people are from direct contact with the government.

    Those that argue that the electoral college is obsolete rarely bother to argue the benefits of the popular vote nor clash with the Founder’s reasoning in the creation.

    -kd

  • http://www.ucblockhead.org/journal ucblockhead

    Bustamante himself is such a candidate, or at least claims to be. Or, at least, he’s running as the “anti-recall” candidate. (I’m sure, if elected, he’d stand for reelection.) As Lt. Governor, he has a good claim to make to be a “nonloophole” replacement.

    Though there’s a bit of irony here as the only thing that could have concievably stopped this fiasco once the signatures were gathered would have been an activist (State) Supreme Court.

    I’m sure the reason Davis didn’t nominate a “protest” candidate himself is that it is bad for his career. The minute a major Democrat enters the race for any reason, his polling numbers go down because of all the Demorats who hate the guy. While this recall may have been initiated by the right wing, the dislike of Davis is bipartisan.

    I hope that however this mess turns out, the state congress drafts a new version of the recall system with something sane, like perhaps a runnoff. (Or perhaps just letting the Lt. Governor take over, thereby making it harder to use the recall system to reverse elections.)

  • http://pobox.com/~joehall joe

    To take the absurdity purposefully to another level:

    http://www.run-for-governor.org/

    “If this recall is successful, how can we ensure that recalls don’t become an annual event? Run-For-Governor.org suggests one way. Imagine a ballot with 1,000 candidates for governor. Run for governor yourself. Help extend the absurdity of this recall election to its logical extreme. Tell the Darrell Issas of the world that politically motivated recalls have no place in California.”

    It’s a fine idea… but I hate to think of all that funding going essentially straight down the toliet.

  • ryan

    In Australia we have a similar system. To win the Federal Elections you must win the majority of votes in the majority of Seats (electorates), and I think “states” factor into this equation too. Not the majority of votes all up.

    While on the face of it this seems odd. It makes sense when you consider the reasoning.

    Australia has a large sparsely populated land mass. The majority of people live in the cities. However, what’s good for the city isn’t necessarily good for “the Bush” so to balance the desires of of these similarly important but very inconsistent populations we have electorates. Geographical areas that a party must win the majority of to take government.

    Likewise, some states are far more populous than others, so having to win the majority of states helps balance that out as well.

    It’s better for the country to not have one highly metropolitan area control policy.

  • ryan

    Which reminds me of a little thought out system of governing I “invented” a while back. It would be nice to see this discussed or thought about.

    More or less a tribal council arrangement.

    Despense with all levels other than local governemnt.

    Elect local government. All local governments have representatives in a state government, all state governments have representatives in a federal government.

    The idea is to remove party politics and force government to work together for the country rather than go on with their political rubbish.

    :)

    shrug.

  • Stevo

    Popular vote? That’s a lot of ballots for winner take all. In a tight election like 2000, imagine the morass we had in Florida on a national scale. As it stands, at least incompetence and corruption (think once again of Illinois) are compartmentalized.

    As to the recall madness, I can only suggest an immediate signature drive the recall the “winner” just as soon as he’s sworn in. What better way to point out the absurdity of it all?

  • http://www.slumdance.com/blogs/brian_flemming/ Brian Flemming

    As Jenny points out, my run for governor (“If elected, I will resign”) was intended to highlight the plain stupidity of the recall, but my candidacy made no sense after Bustamante’s announcement. I do hope the Lt. Gov. frames his campaign as a protest, although he’ll have no choice but to sell himself, unfortunately, as any candidate would. It’s ironic that if Bustamante wins, it will likely be with far fewer votes than he got in November 2002–when the people of California chose him to be the person who replaces the governor if the governor leaves office.

    I was relieved that Bustamante entered the race, as my campaign platform was potentially illegal, had I pursued it, as no shortage of emails pointed out to me over the past 12 days. I admit, however, that I was kind of looking forward to the spectacle of taking the oath of office, signing my letter of resignation, and then being led away in handcuffs. A boy can dream.

    On a related note, I get the free Weekly Standard newsletter (no, really), and today Jonathan V. Last actually wrote something somewhat sensible in it (no, really):

    So, how about them Californians? My little brother is a newly-minted resident of the Golden State, and I’m not sure he new what he was getting himself into. Only California would have a whimsical recall election on a twice-elected governor. I’m with Larry Miller on this one: If you’re going to have a recall provision, it ought to only be used for big-ticket sins like, say, perjury or graft or extortion or public belly-dancing. But for just being a bad governor? How many elected politicians are actually good at their jobs?

    But there shouldn’t be a recall provision in the first place. Running a state should not be like coaching a football team, where too many losses get you canned by management. Why? For one thing, it hamstrings a politician from making unpopular choices. Now I’m not a peace-love-and-understanding kind of guy who thinks “unpopular” is a synonym of “good.” Most times, unpopular choices are unpopular because they’re wrong. But every so often they’re right and a politician should be allowed to make them. After all, we live in a representative democracy where we vote for people, not actions. We elect politicians because we want their judgement making the decisions that we don’t have time to properly research and understand in full. Which frees us up to go to work, see movies with our spouses, and drive children to and from soccer practice. All in all, a fair trade.

    But the biggest reason the recall is a terrible idea is that voters–and more importantly political parties–should not be insulated from the consequences of their bad decisions. The people of California chose Gray Davis. They should have to live with him. They should remember what he did and what he stood for the next time they go to the voting booth. And the Democratic party should, too. We need to make mistakes in order to learn the true nature of people and ideologies.

  • Logic

    “politically motivated recalls have no place in California”

    Hrm… aside from the Governor committing murder or a similar act upon which he’d probably be booted from office or resign himself, I’d like to see a description of what a “non-politically motivated recall” would be like.

    All of you who are bitching about this recall — well, you should have been hip to this provision and nipped it in the bud long ago, perhaps via an ever popular state proposition. Or maybe you should be asking your state representative why they didn’t know about this provision and kill it long ago. It has been used before, and the Republicans certainly found out about it, so it was no great secret. It’s too late to bitch about it now.

    Funny how people claim the Republicans were able to “easily” gather the signatures this time. But nothing like this happened during Jerry Brown’s reign or Davis’ first term. Where might the blame for that lie? Could it possibly have something to do with Davis’ performance that made the job so easy for the Republicans this time around, and unthinkable before? Could it be that gathering the needed amount of signatures is not easy unless the sitting Governor has a bad record?

    Many have bitched about ballot access and how bad the party system is in the past. Well, now we have it, folks, full easy ballot access. Anyone can run. Democracy doesn’t get any purer than that, does it? And yet, everyone is calling what is happening a “big joke”. Well, now maybe people will respect the Founding Fathers a bit more when they intentionally put large obstacles in the way of the “people” ever deciding anything directly themselves — things like the “outdated” electoral college.

    Hypocrites.

  • Logic

    “The people of California chose Gray Davis.”

    It isn’t a certainty, but there was a very high probability that if Riordan hadn’t been sabotaged by Davis, and if California didn’t allow party crossover voting in primaries (another law surely as loony as the recall law), Riordan would be Governor today. Davis at least thought so, given the amount of desctruction he poured onto Riordan. If you really want our Democratic Republic to work, and you rely heavily on the two-party system, you gotta allow both parties to put up their best candidate. Otherwise, both parties will sabotage the other and all we will have left is a slate of incompetents.

  • Logic

    Lessig’s comments on Nixon I find particularly entertaining. He tries to find a parallel between the infamous Chicago count and the current California recall, when the entire 1960 situation might find a better parallel with the 2000 Florida mess and our current “loophole executive” had Gore bowed out that first night.

    The comparison is even more hillarious as it is precisely Nixon’s “moral universe” that almost caused him to be “recalled” in the first place, and he only avoided “recall” by “bowing out” early. So is Lessig also implying that Davis should step down before being recalled? Or is this entire Nixon comparison pretty lame to begin with?

  • Bill

    The fundamental flaw of this argument, in my opinion, is thinking of this recall as an election among a slate of candidates, of which Gray Davis is one.

    There are two separate elections – one where a majority is needed to recall him. If Davis is recalled, the penalty is forfeiture of office and the inability to replace himself. The second provision is not at all unfair given a majority decided to recall him. The fact that the same ballot is used to elect a replacement is irrelevant.

    Why should a candidate being elected with a plurality in this instance be any different than any other “normal” election? The belief in a obtaining a majority vote is a byproduct of our two-party system. If we had more strong parties, plurality elections would be commonplace.

  • http://www.bennett.com/blog Richard Bennett

    Good point, Bill – the party system is key to understanding why the replacement election works the way it does. The drafters of the recall provision, Progressives from 1911 (when that term really meant something), recognized that the biggest threat to democracy was the corruption that’s protected by the party system. If we have a governor who’s so bad – either from corruption or incompetence, and you can make either argument in the case of Davis – he needs recalling, he landed in office because by a failure of the party system to provide the people with a meaningful option.

    So we have to dispense with the party system in the replacement part of the recall process to avoid making the same mistake again. Doing the same thing and hoping for different results, as Lessig wants, isn’t really as much a hallmark of intelligence as it is a symptom of mental illness.

    Unlike the Florida Supreme Court, the California court has demurred from rewriting our election rules, so US Supreme Court intervention won’t be required to ensure the process goes according to the law.

  • Grant Gould

    Oddly, it was the democrats — the same party now loudly condemning the recall provision as somehow undemocratic — that passed the recall provision in the first place.

    If political parties cannot be counted on to provide consistant views and governance over time, what are they good for?

    Oh, that’s right, they’re good for making lots of noise and excluding people from ballots.
    –G

  • Brian

    Eric Anderson, I take direct aim at the California to North Dakota point in the fact that they designed it for such purposes. I don’t want the majority of Calidfornia to be able to tell me how to live in North Dakota. In the Senate that is why there are equal numbers of representatives. The House of representatives holds the balance by population and the electoral college is made up of both, is it not? I have yet to see where the electoral votes of North Dakota have swung an election. That is one true part of the government I believe is still right and true. Now if we could get everyone to understand the constitution the way they wanted us too I think we would all be better off.

  • phr

    Logic’s post about their being two separate elections (one to recall Davis, a separate to find a replacement) doesn’t work for me.

    Logic says the “penalty” for recall is removal from office and disqualification from running again. I see the second part as shaky; anyone is entitled to run for office. Imagine if in the general election, Davis and Green Party voters (combined they made more than 50% of the voters) were also allowed to vote to disqualify Republicans from running for governor in the following election. Someone else can make the technical legal case against that, but it’s clearly outrageous, and preventing Davis from running to be his own replacement seems about the same to me.

    I wrote a letter to the SF Chronicle (they didn’t publish it) in case anyone is interested:
    http://www.nightsong.com/phr/recall.html

  • http://www.aaronsw.com/ Aaron Swartz

    I think the last few episodes of season two of 24 aptly described why these kind of recalls are an abuse of power.

    As for a plurality, you’d think at least California would be smart enough to use a decent election method, but I guess not.

    As for protest candidates, this is sort of funny: Monkey for Governor

    Someone suggested that the electoral college was there for a similarly undemocratic reason as the Senate, but this is absurd. The point of the Senate is that it gives each state equal representation. The electoral college does no such thing, electoral votes are assigned on the basis of population. The electoral college’s only effect is to make at least half the population’s votes meaningless.

  • http://paulrubin.com phr

    Forgot to add: Davis sued in the CA Supreme Court to be allowed to run as his own replacement. His suit also tried to postpone the election until California could finish replacing its now-decertified punch card voting machines, with the (IMO even worse) Diebold touch-screen machines.
    The suit was dismissed by the CA Supreme Court but I hope Davis takes it to the SCOTUS.

    Unfortunately, the press (and maybe the CA Supreme Court) seems to have concentrated on the punch-card issue which is shakier than the question of why someone else should become governor if the recall election shows that more voters prefer Davis.

    I exchanged some email with Davis’s lawyer and will send her a pointer to this blog, since she might like to look at it.

    By the way, the hypothetical outcome in Prof. Lessig’s blog entry exactly mirrors what happened in the real general election: Davis got 47% of the vote, Riordan got 42%, and Greens and others got 11%. If the exact same voters show up for the recall and vote exactly the same way as before (now substituting Schwarzenegger for Riordan), the result is Davis is removed even though nobody has changed their mind about him. IMO that’s not consistent with the idea of a recall, which is to remove an officeholder if and only if the electorate has changed its mind.

  • Ugh

    I’m really at a loss at Prof. Lessig’s statement “neither our President nor over 200 candidates in this California recall election live up to the moral standards of even Richard Nixon.” I can see what he’s saying about the California candidates, but the President?

    To me he’s either saying:

    1. GWB should have refused to accept the Presidency because he lost the popular vote.
    2. GWB should have let Al Gore conduct a selective recount in 2000 in Florida.
    3. Al Gore is really President, but he shouldn’t have filed suit for a recount in 2000 and allowed GWB to be “President” so as not to have the mess we ended up with.

    I guess he must be saying 1., but it’s not clear how he could have done this (assuming things turned out the way they did). It seems to me that you can’t win the electoral college and then say, “but I didn’t win the popular vote, so I’m going to concede to my opponent” and then the opponent gets to be President, he’s not the one who won the electoral college.

    Anyone have any thoughts on this? I suppose he could have encouraged the electors to vote for Gore by insisting he’d resign if he was chosen.

  • http://www.leyden.com Andrew

    Electoral college votes are assigned according to the wishes of the STATE legislatures. The “winner take all” approach for the states is not doings of the Congress or the Constitution, but the states.

    http://www.fairvote.org/e_college/me_ne.htm

    For example, Maine and Nebraska both use an alternative method of distributing their electoral votes, called the Congressional District Method.

    These two�states reward individual Electoral votes to the candidate who wins the most votes in each Congressional district. The remaining two votes go to the candidate who received the most votes state-wide.

    If we want to see a popular vote President, complain to your local state house. However, remember that the reason the states have “winner take all” is to get people to pay attention to their state. Candidates wouldn’t campaign in a state, make promises to that state, hire workers in that state, unless the stakes were worth it.

  • William Rohrbach

    I am frankly shocked that Prof. Lessig would have a problem with the Electoral College. The idea behind the college is the same as the idea behind the Senate. Do not allow a large population in one certain part of the country dictate the politics and life of other areas with less population. California, New York and Texas already have a heavy advantage in the number of electoral votes they have based on their population. The idea of the Electoral College is to ensure that states with lower populations have the ability to have a larger say in the election process. Why should Gore be regarded as the true “president” when his margin of victory in the popular vote was entirely found in 2 states – New York and California. I firmly believe the last election is a strong statement as to why the Electoral College is needed. I’m sorry but I for one appreciate the fact that the “liberal” leanings of the coasts don’t dictate the politics of the nation as a whole. But in the end I guess I shouldn’t be surprised by the opinion of one more of the liberal elite who thinks he has far more capability in understanding the Constitution than those who wrote it.

  • lessig

    William and Karl: My views about the Electoral College are not criticisms of it initially. It made sense of the notion of democracy and the nation at the time. But in the 210 years since, lots has changed. The presumption that there will be an election at the local level at all is one clear change. The fact that Senators are elected is another. In my view, changing the Electoral College should be another. I’m sure this is the sort of thing reasonable people could disagree with, so I’m not sure why any view should excite “shock.” But the important point is that my view is not about the Framers’ democracy; it is about ours.

    More generally, I don’t mean to enter an debate about Bush v. Gore. Rational exchange is not possible there. Indeed, as I suggested, if one believes in the Electoral College, everything except the stuff in the Supreme Court makes perfect sense. My point instead is about the California recall provision.

    Ryan, this is not a criticism of plurality systems in general. It is about a system which bifurcates the decision, and then selects a governor by plurality. Such a system in any large race is more likely than not to replace a governor with someone who has received fewer votes, if the governor is replaced at all. Logic’s nice (buddingly lawyerly-like) separation of one election into two is clever and helpful, though it strikes me as more form over substance. The substance of this election is that the system is rigged to allow the candidates with fewer votes to become governor. At least the Electoral College has a reason grounded in federalism justifying it. No reason could justify the “plurality” requirement, at least for an office as important as governor.

    Finally, welcome to Brian Flemming. Yours was a principled stand — which the Lt. Governor should have recognized and acknowledged at a minimum.

  • http://hiddenspiral.net Cory

    The Electoral College is the one thing that keeps small states like Montana from becoming completely irrelevant in presidential elections. Bush was able to win the election because of the overwealming majority he held in the smaller states.

    While the recall in California is highly politically motivated, I can understand why it’s happening. In Montana a lot of us feel cheated by our Governor who is largely responsible for �de-regulating� our power. In our case �de-regulation� ended up with our hydro-electric dams being sold to out of state interests. Even though over 1/2 of Montana power is sold out of Montana we have seen our power rates raise nearly 40% over the last few years. Our governor has somewhere around a 20% approval rating and I can imagine a lot of voters in California must feel pretty disenfranchised after the power/budget problems that California has had.

    I’m honestly very excited about the California recall election. Finally an election where we won’t be limited to choosing between the lesser of two evils. I’m just praying this works out for California.

  • Josh

    Doesn’t Gov. Davis have the power to put and end to all the silliness? If he resigns as Governor, Bustamante would take over through normal succession laws. However, that should put a stop to the recall process since the target of the recall is no longer in office.

    Or am I way out in the looney bin?

  • Ed Lyons

    Good afternoon everyone.

    My friends from California also tend to have the attitude “we’re too big and important for this kind of chaos.” But if it’s wrong for California, it’s wrong for Delaware. However, the media clearly sees it this way, thinking it’s no big deal what recently happened in Nevada when Republican Governor Kenny Guinn decided to sue his own legislature to get a tax increase passed -which was somehow supported by Nevada’s Supreme Court (!?). (I could defend Bush v. Gore more easily) I suppose people thought, “It’s just Nevada.” Amusingly, it mattered that one of Gray Davis’ staff, upon hearing about the Nevada case a month ago, said they would consider using that kind of approach to get around the legislature in Sacramento if need be.

    Professor Lessig – I completely agree with your principled stand on the flawed nature of this recall. However, it’s difficult to feel bad for Davis, who definitely fits the ‘recallable’ description in the constitution of a “dishonest, incapable or unsatisfactory” official. His penchant for dirty politics and quid-pro-quo fundraising make him an unsympathetic victim here. His interference in the Republican primary to prevent a certain loss to Riordan makes it hard for me to listen to his claims of what is and isn’t fair to the voters of California.

    Technical problems aside, the recall provision (which has been invoked before unsuccessfully) would appear only to have a chance if aimed at a very disliked governor during a really big crisis that he is in some part responsible for. Governor Davis seems to exactly fit the ‘spirit’ of whom the drafters had in mind. But you’re right, it is too bad they didn’t put more effort into the ‘letter’ of the replacement process.

    Ed

  • Me

    On rare occasions, Lessig, you’ve got your head up your arse.

    This is one of those times.

    The whole reason we have the Electoral College is the same reason we have the Senate; to give the smaller states a bit more power than they otherwise would have. Yes, Rhode Island only gets 4 votes compared to California’s 53, but if it were by population, the entirety of the State of Rhode Island might as well stay at home.

    Sit in on a few Political Science courses once in a while, it’ll do you a world of good.

    As for the overly activist Supreme Court… the only other decision they could have come to was that Florida hadn’t gotten its count done in time, therefore didn’t send electors. Ergo, the vote falls constitutionally to a Republican-dominated Congress. The undoubted result there? Bush would have won.

    The only place where you DO have a point is on the plurality vote; California’s recall ought to have in place some runoff elections, or else some more stringent requirements to BE a recall candidate. But that’s about it.

  • phr

    Something’s missing here.

    The idea of a recall is that if an official is elected and does a bad job, the voters can change their minds and undo their mistake of electing him.

    In Davis’s case, he won with 47% of the vote when the Republican candidate got 42% and Greens and others got 11%.

    Suppose the exact same voters vote in the recall, and they vote the exact same way as before: 47% against the recall (i.e. keep Davis), 42% for the republican (Schwarzenegger this time), and 11% for others. Nobody has changed their minds about anything! Twice in a row, more voters will have wanted Davis than any other candidate.

    So why is the governorship supposed to change?

    Nobody has been able to explain that yet.

  • Me

    Oh, and one other thing — you’re looking at the Recall wrong. A Recall is really a vote-of-the-people Impeachment. “Throw the bum out” as it were.

    If couldn’t succeed if the elected official in question had the support of the people. Note that NO Governor of California, since this provision, has ever had to go through a recall, UNTIL NOW.

    Says something about Gray Davis, and something to the effect that the people DO NOT TRUST HIM.

    Believe it or not, where I went to college, we actually DO have a class on Constitutional Design. (4000-level). It involves a case study of a theoretical location, along with intensive studies of existing Constitutions of the world today along with their various iterations and amendment procedures.

    I can tell you this much; just about every person who finishes the class, and suggests provisions, has a recall or impeachment procedure, or both, in place for ANY elected office with a term longer than three years. It’s a good thing.

    The difference between relying on a bad constitutional clause to become Governor, and recalling a bad official who can’t be trusted to do his job to the satisfaction of the electorate, is slim. Call for tweaking of California’s statutes, but to suggest that recalls themselves are a problem is just silly.

  • Me

    phr,

    You’re right. That is indeed the loophole. It is that exact loophole which would indicate the need for a runoff procedure, or at least for a much higher standard of signatures to get into the race.

    Then again, with the higher standard, or the runoff for that matter, the Greens would never make it onto the ballot in the actual deciding vote.

    Chew on that one.

  • http://vquill.com/ Dave Kearns

    THe recall law has been on the books since 1911. The first attempted recall of a governor was in 1936. Over the past 30 years, recalls have been started against every sitting governor in California.

    So when you state: “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,” one must ask why no one noticed this before? Or are laws only stupid when they are actually enforced?

  • http://paulrubin.com phr

    Dave Kearns, California’s recall law was intended for lower level officials like local judges. I don’t think the people who drafted it were thinking about the Governor. As Brian Flemming said, the governor already has someone elected to succeed him in the event he leaves office (i.e. the Lt Gov). It’s like if the President is impeached, the VP becomes president.

    I’m ok with the idea of having a law letting voters recall the governor, but the succession should be to the Lt Gov, not to some random carpetbagger. I hope there will be a ballot initiative or legislation to make that change.

  • Hanging Chad

    Serious question about the Gore/Bush thing: When the Florida newspapers finally got around to finishing the recount, such as it was with all that chad nonsense, I vividly recall hearing on NPR, and then reading on CNN.com that Gore had won. The headlines all said Bush won the recount, but if you read the details it turned out that Bush still won if you only recounted the counties Gore had asked to be recounted. When all Florida counties were recounted, Gore had more Florida votes, a fact noted by both NPR and CNN. You couldn’t tell it by the headlines, and the national TV news blared “Bush wins recount,” but the details were there.

    Nobody ever talks about this. I didn’t get this from some left-wing or progressive marginal web site. These were national news organizations reporting that Gore actually won the recount. Yes, yes, I know, there are all those questions about overseas ballots, and thrown out ballots, and people being blocked from voting, and Jews for Buchanan, and all the other conflicting messes that occurred.

    But ever since reading those news reports of the unofficial recount, I’ve believed ever since that Gore won both the popular and electoral vote, but that this wasn’t trumpeted because of the upheavel it would count. Not to mention how the press rolls over for the Bush administration anyway.

    So serious question: Did anyone else read what I read in those original sources at the time the news came out? If so, why isn’t this more widely known?

  • Ed Lyons

    Forgot to mention something. People sometimes think that those who run for President vie for the most popular votes and the Electoral College simply comes into play at the end, and rarely, cheats a guy out of the victory he deserved. This is silly. Candidates don’t care at all about the popular vote – their entire campaigns are specifically about the electoral college. This is why Bush spent almost no time in NY and Gore almost none in Texas. If they cared about the popular vote – both men would have run entirely different campaigns. Bush didn’t slip through a loophole in the electoral college. Leaving the Supremes’ involvement out of the equation, Gore lost the game he knew he was playing from day one of his campaign.

  • Scott Clair

    Prof. Lessig makes some good points, but the whole popular vote, electoral college problem, if it be a problem, was also evidenced in Bill Clinton’s two victories. With Ross Perot in both the 92 and 96 races, Clinton received less than a majority of the popular vote but took the Electoral College. True, Clinton had the most votes of the three contestants, but he was still well under a majority of votes (though I’m guessing the percentage he garnered would easily make one guv of calif.).

  • http://grant.henninger.name Grant Henninger

    I respect Prof. Lessig as much as anybody, but I think he is wrong. To find out why please look at my post on the matter. I feel it is too long to put here in a comment.

  • MrFiveYearsAtBerkeley

    I don’t see much traction in the argument that this is bad just because Davis might get more votes (“no” on the Recall) than the winner of the contingent election. That can happen in a perfectly regular run-off election, too (49% of a high turn-out general election v. 55% of a lower turn-out runoff) and that doesn’t call into question the legitimacy of that ultimate winner, does it?

    It may be a slightly insane system, but I ask you: so what? In 90 years it’s never been used against a governor and I don’t think it’s been done against any statewide office (N.B.: I don’t remember if Chief Justice Rose Bird was recalled or merely lost her 7-year re-up election). Despite some very bad moments of many of our Governors, Californians have stayed their hands — Jerry Brown, Pete Wilson, and Pat Brown poll numbers in the toilet, in Jordan Lyman territory — and no recall has ever made the ballot. I think we’re quite cautious with it, thank you.

    * * *

    Also: if Davis resigns, Bustamante becomes acting Governor until the results of the election are certified then is either Lt. Gov again or Gov., depending on whether the recall succeeds or if he wins the plurality.

  • http://www.crossroads.net/a Adam Rice

    It’s a bit disingenuous to say there are two votes happening. Formally, that’s true, but the two cannot be disentangled. You couldn’t hold an election that asked “would anybody be better than Davis?” and leave it at that. The followup question is implicit.

    That said, imagine the following: Davis gets onto the slate of recall candidates (is he offically on now?). He loses the first half of the recall vote, but not by a crushing margin. If the people who voted to keep him vote for him on the second half of the ballot, and the people who voted against Davis split their vote between the Terminator and Gary Coleman, Davis is back in office.

    The other possibility is that many people will vote against Davis in part 1, and even those who vote to keep him will say “Gee, if I had a do-over, I sure wouldn’t pick Davis!” and in fact they select someone else.

    I’ve wondered: is it fair to let those who vote to keep Davis also vote for his replacement? If so, then it is reasonable to treat these two ballots as separate. If not, then it is absurd to.

  • http://www.bennett.com/blog Richard Bennett

    In the 2002 election that put him in office, Gray Davis failed to win a majority. His final total was 3,533,490, or 47.30% of votes cast.

    So it took a mere plurality to elect him but it takes an actual majority to recall him, and then a mere plurality to select a successor.

    These are the facts, inconvenient as they may be. The recall is in fact more “democratic” than the 2002 general election was.

  • lessig

    Sorry, I thought this point was obvious, but apparently not.

    In the 2002 election, the guy who got the most votes won.

    In the 2003 election, that will probably not be the case: if Gray gets 47.3% again, he will lose the recall. But then the person who wins the “plurality” election is most likely to have less than 47.3%. So the guy who gets to be governor is not necessarily the one who got the most votes.

  • http://www.bennett.com/blog Richard Bennett

    That’s simply a quirk. We normally aggregage votes through a primary/nimnation process followed by a general election, and this time we skip the second step. Is it more democratic to skip the primary, or less?

    I would argue it’s more democratic.

    It’s also more democratic to require a majority to recall Davis, where a plurality elected him.

    So we have greater democracy in the recall on two counts, and still the liberals complain.

  • Anonymous

    Yet it’s argueably less democratic to prevent Davis from appearing on the replacement ballot. The “anybody but” nature of the recall is troubling.

    The system lacks sufficient feedback for self-regulation. Assume Davis is recalled and “the last action hero” is selected as his replacement. What’s to prevent a second recall? Davis will have plenty of campaign $$ to pay the $1/signature like Issa did for the current recall. It’s unlikely Arnold, or for that matter any of the replacement candidates will be elected with a majority, and will of couse inherit the same problems. Infinite recursion, infinitesimal improvement.

  • http://www.bennett.com/blog Richard Bennett

    The recall law has been on the books since 1911, and this is first time anybody’s succeeded in getting enough signatures to force a vote, so I think it’s a little premature to proclaim the sky is falling.

    Being a democracy means allowing the people to make choices, and that’s exactly what the recall does. We didn’t have a meaningful choice in 2002 due to Davis’ $9 million manipulation of the Republican primary, so now we have Darell Issa’s $1.5 million correction. That’s not very botherseome, given that close to 2 million voters signed the petition, about a third of them Democrats.

    BTW, tough luck on favorite terrorist “Mike” Hawash – he was guilty after all, wasn’t he?

  • Anonymous

    “Being a democracy means allowing the people to make choices, and that�s exactly what the recall does.”

    Does being a democracy mean that people can make new ‘choices’ each week ? each month ? or just once a term ?

    if having the ability to recall is a sign of better democracy, then why isn’t there a provision for recall in all of the states ? or for the US Presidential election ?

    Hopefully, some elementary teachers will take note of this and explain to kids that democracy _can_ mean that even in elections where there is no electoral college, a guy with less votes can win.

  • Dale S.

    Richard, I don’t recall making any statements Re Hawash, no or ever. Perhaps your trolling macros need a little refactoring.
    Or was that a lame attempt to provide yourself a straw man that could be more easily attacked? Either way I’d expect better from the man who invented WiFi.

    It’s interesting that you morally equate Davis’s politcal ads during an election season to Issa’s $1/signature recall petition. Power by any means eh? Recall ‘em, impeach ‘em, bus the operatives into FL for a Brooks Brothers Riot, whatever works. Perhaps you should lay off the Coulter for a few days. :-)

  • http://www.bennett.com/blog Richard Bennett

    if having the ability to recall is a sign of better democracy, then why isn�t there a provision for recall in all of the states ? or for the US Presidential election ?

    Good question. There are provisions to remove presidents and governors, but they don’t typically rely on direct democracy, but on the legislative body; it’s called “impeachment”. These provisions were crafted in an era when direct democracy was seen as too scary and thing to unleash on the body politic, who after all were generally illiterate and uninformed.

    The Progressive Era reforms that brought the direct recall to California weren’t popular throughout the country, as politicians weren’t inclined to give the people enough power to remove the crooks from office and to neuter the party system.

    Direct democracy is still a scary thing, although it’s fashionable among techno-pagans to fawn over it when it’s wrapped in a trendy new label like “emergent democracy” and attributed to insects and routing algorithms.

    Is the California recall law an example of “Emergent Democracy” and therefore groovy, or simply another way for the Evil Rich Republicans to make us use MS-Windows?

    Only time will tell.

  • Anonymous

    so is it possible that the guy with lesser votes will win ? possible at all ?

    (I’ll skip over the part where you mention “Evil”, “Rich”, and “MS-Windows”, which sounds like it’s thrown in for dramatic effect.)

  • Anonymous

    “BTW, tough luck on favorite terrorist �Mike� Hawash – he was guilty after all, wasn�t he?”

    How can any of us know for sure? It is easily as plausible that given the choice of being declared an enemy combatant and being ‘disappeared’ forever, and making a plea bargain whereby he at least will see the light of day in a few years he lied. You, Richard, have no way of knowing which is correct other than your assumptions. I have no way of knowing.

    And that is a complete shame to realize our country has come to this.

  • http://www.bennett.com/blog Richard Bennett

    Lesser than what? The recall and the replacement are two separate questions. Aggregate the replacement votes through the party machinery and that goes away. But as I said, there are good reasons not to replicate the process that brought the corrupt Davis to power.

    I personally like Linux better than Windows, but I feel like the people who want to use Windows should be allowed to.

    Free choice.

    “Mike” Hawash admitted to being a terrorist, and that’s good enough for me.

  • http://www.bennett.com/blog Richard Bennett

    Incidentally, Wi-Fi is not an End-to-End system, but it’s still groovy.

    Shocking, isn’t it?

  • http://www.cs.duke.edu/~justin/ Justin

    Richard:

    You still haven’t answered how it’s “more fair” for someone that gets thirty percent of the vote (ballparking it based on the latest poll figures I saw) to replace someone that got a bit under fifty percent of the vote. I imagine that whoever replaces Davis will have the support of much much less than fifty percent of the electorate.

    As for the $9 million spent by Davis, he overpaid. For $4 million you can disenfranchise the voters directly and remove up to 58,000 “felons” (well, actually only about 2900 felons, the rest were on that list by “accident”, I presume), the vast majority of which would have almost assuredly voted for the opponent.

    http://news.bbc.co.uk/1/hi/events/newsnight/1174115.stm

    -jdm

  • http://www.bennett.com/blog Richard Bennett

    You’re not asking the right question, because your partisan blinders are on. A minority elected Davis, but it takes a majority to recall him. That’s fair.

  • Anonymous

    So basically the recall election, in all its rules, is essentially the same as the regular gubernatorial election ? Forgive my ignorance on this.

    p.s.
    “Wi-Fi is not an End-to-End system, but it�s still groovy.”

    oh come on, Richard.
    why not just say “Pleeesse someone argue with me!” and get it over with.
    you have the stealth transparency of Stephen Hawking showing up at the Livermore High School Math-a-thon with that comment. Here’s hoping that juicy hook you threw in the river isn’t caught by any unsuspecting fish.

  • http://www.cs.duke.edu/~justin/ Justin

    A minority elected Davis, but it takes a majority to recall him. That�s fair.

    … and another (even smaller) minority to elect the next candidate. So let’s try this question:

    Why should we replace a candidate that fifty-five percent of the voters opposed (in the election) with a candidate that seventy percent of the voters oppose?

    And neither of us have even touched on the issue of voter turnout yet. What if the turnout rate for this election is lower than the one for the last gubenatorial election? Is the election “more fair” if only thirty percent of eligible voters show up?

    You conveniently ignore the fact that I haven’t bothered to support Davis, just oppose the recall process. Then again, it seems that kind of nuance doesn’t let you use fun phrases like “partisan blinders” and troll about terrorism.

    -jdm

  • Anonymous

    �Mike� Hawash admitted to being a terrorist, and that�s good enough for me.”

    Exactly. You ignore the argument as to why his admission might be false and then resort to emotionalism.

  • ryan

    I’m not fully versed on how your system works. So I’ll question and give an example from mine.

    Q. What is a “recall” and why has it happened.

    Now my system:

    In our elctoral system we can have what is called a “by-election”. This is where an electorate (presumably similar to a college) will have to elect a new representitive for whatever reason (perhaps death, perhaps someone resigns for various reasons or is jailed etc etc).

    The results of this by-election could conceivably change the government (westminster system also dictates that our Prime Minister would then change as he is the leader of the governing party).

    However, as I understand it the decision is purely popular vote (within the one electorate), so if the incumbant was allowed to stand he could still win by majority.

    It is important to note, however that there is a “preferences” system. When you vote you can mark several canditates in order of preference. So the “majority” winer is decided on who has the most primary and secondary votes (this may depend on whether a clear majority was won through primary votes).

    This leads to “directed preferences” where parties encourage their voters to direct preferences a certain way to minimise the chance of their opponants gaining power through the preferences.

    Also note, 100% of Australians over 18 must vote. It’s illegal not to.

    This leads to Donkey Voting. Where people who couldn’t care less will vote by simply numbering the boxes in the order they appear on the page. Thus you position on the ballot paper can be important when there are high levels of voter apathy.

    Cheers,
    Ryan

  • http://www.bennett.com/blog Richard Bennett

    Why should we replace a candidate that fifty-five percent of the voters opposed (in the election) with a candidate that seventy percent of the voters oppose?

    Interesting confusion. George H. W. Bush was elected in 1988 with a huge majority of the popular vote, and he was replaced by Bill Clinton in 1992 with a minority of the popular vote. Was that unfair?

    Obviously not, because those were two different elections, and Clinton polled less well in 1992 than Bush did in 1988 largely because Ross Perot pulled down a big chunk of votes. So why in the world was Clinton allowed to replace such a popular president as Bush 41?

    Think on that and get back with me, OK?

  • ryan

    Further reading lead me to what a recall is.

    An anti-election as it were.

    I agree with Brian Flemming. You should be stuck with him. It’s more disruptive to government to have to run a popularity contest all day every day. They are (should, I doubt many are) be running a state or whatever in the best way possible. If they do it poorly you oust them next election.

    It’s counter productive to be able to sack them whenever you want.

    Who knows maybe they’ll correct their behaviour by the end of their term and prove themselves worthy…

    Pipe dream perhaps.

    ;)

  • Anonymous

    “Was that unfair? Obviously not, because those were two different elections”

    and one can argue that the recall election in CA isn’t exactly a completely different election than Davis’ first one, because it’s main point is to replace someone who hasn’t finished his term. In general, I don’t think it’s productive to make any analogies to Presidental elections just because you can get mired in the differences.

    An election for a governor is just not at all like a President, no matter whether it should be the same or not. I think it’s pretty clear that the recall is getting more attention now than it has before just because it hasn’t been tested before, and it’s not like Davis has been the worst governor, nor has he been the best.

    There’s a reason why other states don’t have recall laws…we might find out why very soon.

  • http://www.cs.duke.edu/~justin/ Justin

    There’s a difference between elections that take place at well-established times, and those that can just happen whenever the voters get upset. The “every-X-years” system buffers candidates from the random whims of the electorate. (By the way, isn’t Bush at a shade above a fifty percent approval rating and dropping fast?) This buffering allows candidates to occasionally go out on a limb and actually lead, even if they’re dragging the voters kicking and screaming along with them. By allowing the voters to recall an official whose job ratings have dropped below fifty percent, the official is stuck in a permanent “lame duck” environment, knowing they could be booted if things go sour for a few months in an X-year term.

    Now, if the candidate actually goes and does something criminal, then they should definitely get the boot. That’s what an impeachment is for, but there are safeguards in place to prevent arbitrary and vindictive impeachments (well, supposedly).

    None of this should be construed in a way to support Davis; he very well could deserve the boot at the next election. But there’s a big difference between well-established terms of office and elections that come about arbitrarily because of a recall.

    It’s that pesky nuance issue again, isn’t it?

    And I wasn’t aware that we had to vote on one OS. I was under the impression we could have more than one. Or is that your version of tolerance?

    Sorry your man lost in ’92, by the way.

    -jdm

  • Nick

    People can be propagandized into believing almost anything. Just look at the ignorance inherent in all those people who were led to believe Iraq had anything to do with 9/11. So I’m not a bit surprised that the right wing managed to buy enough public opinion through propaganda to get a recall effort through. If you have the money, and you know how to manipulate people’s opinions, you can get people to sign a petition to elect a chimp.

    So the people of California had a vote, elected a governor, and the right wing got offended at Davis’s sleazy methods. Not too hard to be offended at Davis, btw. But what is especially sleazy is the way they manipulated people into signing on to this recall business. Democracy in action? Nope. Just propaganda doing its job. Sheeple are easy to fool.

  • http://www.bennett.com/blog Richard Bennett

    Sorry your man lost in �92, by the way.

    But he didn’t. G. H. W. Bush was my congressman in Houston back in 1968, and I was never real fond of him. It seemed to be that he’d lost the fire in the belly in ’92, and I was right annoyed with him for leaving Saddam in power and failing to protect the Shia rebels in southern Iraq, so I went for Clinton. I never voted for a single Republican, for any office at all, until 1996, but once you go over to the dark side, you’ll never want to go back.

  • http://www.bennett.com/blog Richard Bennett

    There�s a difference between elections that take place at well-established times, and those that can just happen whenever the voters get upset.

    In most countries with parliamentary systems, elections aren’t held at regular intervals, and the leader is chosen by the parliament. England, for example.

    The Brits seem to handle the irregular system pretty well, don’t they?

  • ryan

    I’m not sure where you get your information on the Westminster system from.

    While I can’t be 100% sure, I imagine the the British system is very similar to my own.

    We have an election every three years (not on the exact aniversary, the government must call the election, but it has a certain period in which it has to have called it — this can lead to “early” elections if the government desires).

    The PM, while technically appointed by the Governer General/Queen is effectively elected by the people. Invariably the leader of the party that wins the election becomes the PM (and the people expect this when voting. ie they vote for John Howard and the Liberals, not just the Liberals — or not as the case may be, ;)). The PM then appoints the Governer general (who will ratify their PMship).

    Our figur head is separated from Governement, though technically still has the power to desolve parliament or not approve legislation etc. Though that is very rare, and would take extreme circumstances.

    I must say I far prefer the westminster system to your own. Your’s, in practice, seems to encourage corruption in the election process. At least when viewed externally that is the appearance.

  • ryan

    Another “advantage” I see in our system, is that there is no false aura of infalability etc around our leaders. They aren’t viewed with missplaced awe, they are viewed as the administrators that they are and nothing more.

  • http://www.bennett.com/blog Richard Bennett

    The government in England has to call elections within five or six years, and they often do call them earlier than they have to, for a number of reasons related in insider dynamics, the economy, fashions, and the price of curry. In your parliamentary systems in mega-multi-party countries like India, no party ever wins a majority so you always have rule by coalition, and these coalitions can be very unstable, often lasting less than a year. Somebody leaves the coalition, a no-confidence vote forces the dissolution of the parliament, and an election is held. But these are quick elections.

    The main disadvantage of the American system is perpetual campaign mode – they’ve already been lined up for the 2004 presidential election for months now, for chirstsakes, and two-year long campaigns cost way too much money. The main beef against Davis is he never stopped fundraising and campaigning and got down to governing. There are still vacancies on boards and commissions, and he doesn’t have time to meet with legislators on their bills.

    He’s treating governor like a part-time job, even with the state in crisis. That won’t do.

  • http://chronotope.com filchyboy

    re. 200 election

    Perhaps you could explain this loophole in the Constitution which allowed SCOTUS to pick the president. I’ve read the document several times and what I take away from it is that the Constitution was in fact breached by court. If the rules as laid out in the Constitution had been aplied Dennis Hastert would most likely have ended up being president instead of the existing pseudo-potus.

  • Karl

    From what I’ve found in my research, the court had only one other option in Bush v. Gore. Had Gore’s side prevailed, the Court had not choice but to declare Florida’s Electoral votes uncertified, and the election would have fallen into the (GOP controlled) House of Representatives. It did not have the power to extend the deadline to allow for further recounts.

    -kd

  • Anonymous

    “He�s treating governor like a part-time job, even with the state in crisis. That won�t do.”

    so basically you’re saying you don’t like the job he’s been doing.

    for the same token:
    arguably, Bush has alienated some countries who we used to have better relations with, to go to war in a country who has never (and didn’t have the ability to) attacked or presented a direct threat to the US.

    I don’t like the job he’s been doing either, but whether or not my definition of ‘acceptable performance’ applies or not, I just have to wait until the next election to voice my opinion in the form of a vote. So should be California.

    It should be clear at this point that the California recall law doesn’t do so much good, if it makes every office recall-able. The differences between impeachment and recall are very different, so analogies cannot be made there. For the people that argue “why complain about it now?”…there are some laws in Vermont forbidding husbands from appearing in public with their wives if their wives have wooden teeth either. Once it becomes enforced, the folly of it should be apparent.

  • Anon

    “I just have to wait until the next election to voice my opinion in the form of a vote. So should be California.”

    (Un)fortunately, your whims aren’t the binding law in this case.

    Democrats whining about the rules of the game only once they appear to be against your favor, the major similarity this event shares with Election 2000.

  • Anonymous

    And Republicans whining about the job performance of any Democrat in office shares similarity to pretty much every political event in the past 30 years. What is your point here ?

    Like some posters above, I’m not defending Davis’ terrible job thus far, I just don’t see it so bad that it can’t wait until the next election, or that any other governor would have done any better of a job. California has been in worse situations before, but yet no recall that worked. Don’t throw out the possibility that it’s simply that there is such a partisan environment nowadays that both the Reps and Dems feel like any way they can gain ground, they will.

    There is a reason why most states don’t have recall laws like California.
    Can you guess why ?

  • Anon

    Yes, because they haven’t put them on the books. As I said, you can stop putting your whim at a higher level than the nearly 2 million people who signed the recall petition anytime now, because you sound ridiculously pompous.

  • Laura

    Hmm… the main topic of this thread is the CA recall. I’m on the other coast, so I haven’t formed a particular opinion on that, but I wanted to throw in my .02 on the electoral college… I gotta agree with Stevo on this one…As a former Floridiot, I would stake my life that nearly every other state had as many voting problems as the sunshine state. What an unholy mess we would have had if we had to recount the entire frigging country (and I believe the margin of error in the popular vote was such that we would have had to recount everyone if we did use popular vote). Personally tho, the thought of using the direct popular vote really scares me. In its simplest form, democracy is 2 wolves and a lamb voting on what to have for dinner. If I’m gonna be the lamb, I’d like some small measure of protection from the wolves. Besides that, I’ll leave the actual mathematics of computing voting power to the mathematicians…..

    (And if you’re curious, I threw away my vote in the 2000 elections. Both Bush and Gore left a bad taste in my mouth….I wrote in John McCain…)

    /Laura

  • http://www.christophercharles.com Chip

    Re: “the moral standards of even Richard Nixon”. (Isn’t that an oxymoron?)

    I think I’ve read in Anthony Summer’s book on Nixon and elsewhere that Ike told Nixon not to contest the 1960 election. So perhaps your post should read ” …neither our President nor over 200 candidates in this California recall election live up to the moral standards of Dwight Eisenhower“.

    Who, I’m sure, would have been appalled by this ridiculous farce. Most of those 200 candidates, including the Governor and also including the sponsors of the recall, are doing a very good job of sinking down to the moral standards of Richard Nixon.

  • Dishman

    To my mind, the question is:
    Is Davis bad enough that we simply cannot afford to wait until the 2006 election?
    That is a much higher threshold than whether or not I support him. I believe that there is a substantial portion of the electorate that also uses this threshold (at least 10%, but probably much more). That element is enough to serve as damping for recall-frenzy.

    Is the situation so intolerable that waiting for another election is unacceptable?
    Personally, I feel that it is. I recognize that others disagree. We are having an election to decide this point.

    Many people here have expressed an objection to the process, but haven’t really expressed any alternative that addresses my support of the recall, so I’ll put forth my own proposal:
    1) Process for initiating recall remains
    2) Threshold for qualifying canditates remains or is raised slightly
    3) For each candidate, voters select “Preferred”, “Acceptable” or “Opposed”.
    4) Winner is the candidate with the most “Preferred” votes.
    Recall fails if the winner is not “Preferred” or “Acceptable” to either a majority or (tbd) supermajority.
    5) If the recall failure line is supermajority, there is no specific recall question.
    6) Alternatively, winner is the candidate with the most “Preferred” votes who received a majority of “Preferred” or “Acceptable” votes.
    In essence, the objective is to, recognizing that the current situation is broken, arrive at some form of consensus.

  • Anonymous

    “Yes, because they haven�t put them on the books.”

    Ok, I thought it was clear what I was asking. WHY aren’t recall laws on the books of other states ? What are the reasons they give for defeating any ideas of recalls ?

  • Anonymous

    “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.”

    You appear to have it backwards. In the JFK/Nixon analogy, President Bush would be JFK and it is Al Gore that would be Nixon. President Bush won the initial vote count in Florida, putting him the JFK position. It is Al Gore who then failed to meet the Nixon standard and concede at that point. Unless you actually mean to make the preposterous claim that Bush should’ve conceded an election he had won…?

    It’s a shame to see politics get in the way of logic and serious thought.

  • Hanging Chad

    Hmm…I see no one commented on my post about Gore winning Florida, and thus capturing both the electoral as well as the popular vote. As I said, I read it, and heard it, and yet it is being ignored. People still have the misconception that Bush won the overall recount in Florida, and that he thus captured that state’s electoral vote. Even in this thread people have this misconception.

    Mass media amnesia works.

  • Paul Schindler

    Re: Nixon’s Moral Standards.
    Did Nixon, in fact, demonstrate high moral standards by refusing to stretch out the fight over the 1960 election? At both Slate.com and tompaine.com, analysis has appeared which questions this popularly held belief:

    http://www.tompaine.com/feature2.cfm/ID/3851

  • Dee

    I remember the same thing, Chad. I never could sort out exactly what happened in Florida and trying to seems to leave me with a pounding headache. In any case the damage has been done and all we can do is figure out a way to avoid the same kinds of disaster in future elections.

    Where the Federal election system is concerned, my opinion is that it’s the Primaries which cause more problems than the electoral college. My own State is a good example of it. By the time Indiana holds its Primary, the candidates are generally already decided. That leaves me and most other Hoosiers who would vote in Primaries pretty well wasting our time, and our choice completely meaningless. If my choice of candidate mattered in getting his/her name on the election ballot, then I’d be a whole lot happier with the electoral system. As it stands I get to select from candidates that thousands of others put on the ballot without my input. Usually that winds up being a vote for the “lesser of two evils” for me which is discouraging in the extreme.

    The CA recall? I think it’s insane altogether. Personally, I’d prefer Instant Runoff whenever the votes are in doubt, or an election is challenged. It’s just the simplest solution to a messy problem.

  • Dee

    And to Brian Fleming, wonderful way to show your disapproval with the system. I’m almost sorry you dropped out, myself, and I don’t live in CA.

  • Hanging Chad

    Thank you, Dee. Sometimes having a good memory is hard to deal with. You start to question your sanity after a while wondering why no one else remembers what happened. People are so accepting of the information that is pushed at them from the media that without a good memory we can all be victimized by those with an agenda.

    I agree that it’s too late to do anything about the 2000 election. All I’ve ever wanted to do is set the official record straight: When all was said and done, Florida voted for Gore. Bush got in because SCOTUS short-circuited the recount process before it could be done, and to be fair Bush was still leading at that point in the process. To be even more fair, as I said before, Gore never asked for a full state recount, so even if the partial recount had been allowed to continue it would not have changed things. And yes, once Congress started counting up the electoral votes, it would have gone Bush’s way anyway.

    But when all was said and done, as it later was discovered, Gore won both the popular vote as well as the electoral vote. So those who are complaining about Gov. Davis not getting enough support in the original election, just remember that neither did Bush.

  • http://www.cs.duke.edu/~justin/ Justin

    Democrats whining about the rules of the game only once they appear to be against your favor, the major similarity this event shares with Election 2000.

    I agree. Hard-right-wingers have the foresight to rig the game months ahead of time so they don’t have to wait until the last minute. It’s much easier (and cheaper) that way.

    http://news.bbc.co.uk/1/hi/events/newsnight/1174115.stm

    -jdm

  • Dee

    (laughing) Chad, I’m a supporter of Congressman Kucinich for the Democratic nominee. If I relied on mainstream media to tell me how he’s doing I’d have given up months ago. ;D

  • http://www.snappingturtle.net/flit/ TM Lutas

    I can’t believe some of the apples and oranges stuff I’m reading on this comment board. The comparison of 47.3% that Davis won in the last election to the 25% that AS is polling today is absolutely foolish. The same poll gives Davis 35% today on the recall question so to start off, that’s a fair number comparison. So in the first week, AS is within political striking distance of beating Davis in numbers of votes cast. It’s certainly plausible that 35%+ will punch the chad for AS while Davis may drop. So all this hand-wringing about the recall being less democratic is so much wishful thinking by the anti-recall side.

    Another thing that hasn’t been mentioned so far is that to get a recall approved, you have to count up the last time the Governor’s job was on the ballot and get 12% of that number in signatures spread across at least five counties in California. This means that suppression of voter interest by negative campaigning makes you more vulnerable to a subsequent recall. No California Governor has ever suppressed the vote totals so well as Gray Davis and then went on to screw up so much so fast, cratering his popularity and making a recall effort viable. I want to reiterate, Gray Davis’ sleazy campaign tactics are an important factor in the ability of the recall effort to get off the ground.

    The unmentioned lesson here is that now and future candidates for the offices subject to recall in California have a practical incentive to avoid driving down turnout and similarly making themselves vulnerable to a recall drive. Thus my fearless prediction, California politics will take a positive turn towards high participation largely positive contests in future. The recall is no longer a toothless provision. Candidates now know that they can be pulled from office at any point in their term if they don’t make that 12% threshold as unreachable as possible.

  • David Fuhs

    Eliminating the electoral college would go a long way towards eliminating the need for 50 separate states. Another of your commenters suggested that more populous states should have more Senators than less populated states. This, of course, would completely obviate the need for a Senate at all. Why should we be burdened with pesky little clauses in the United States Constitution if we don’t want to be? That same Constitution has another pesky little clause detailing the means by which it can be amended. If you don’t like representative democracy or the electoral college, preferring the ultimate “convenience” of direct democracy, perhaps you should be starting a movement to have the Constitution amended to reflect your position rather than whining about the current law when it creates results that aren’t quite to your liking. Finally, I’d like to “remind” you that President Bush is not the only President to have gained the office without winning the majority of the popular vote (John Quincy Adams, Zachary Taylor, James Buchanan, Abraham Lincoln, Rutherford B. Hayes, Benjamin Harrison, Grover Cleveland, Woodrow Wilson, Harry Truman, Richard Nixon, and Bill Clinton) two Presidents have won the Presidency without even having more popular votes than any other single competitor (John Quincy Adams and Rutherford B. Hayes), and two other Presidents gained the office with out having more electoral votes than his opponent (John Quincy Adams and Thomas Jefferson — J.Q. Adams had fewer popular votes AND fewer electoral votes than his adversary, Andrew Jackson). Oh, by the way, about that snide comment that went through your mind when you read Nixon’s name — Nixon lost the popular vote by the slimmest margin ever (slimmer than the 2000 election) and yet J.F.K. won the presidency by 84 electoral votes (almost a landslide).

  • Chris Yu

    To Josh’s question on whether Gray Davis could resign leaving Cruz Bustamante as governor, Slate answers:
    “Nope. If Davis resigned today, Bustamante would take over until the Oct. 7 election. But if voters then opted to oust Davis, the elected replacement would take Bustamante’s place. Officials aren’t sure what to do if Davis resigns and the recall doesn’t oust him�but presumably Bustamante would remain in power.”

  • http://www.bennett.com/blog Richard Bennett

    The latest CNN poll shows Davis with the support of 26% of likley voters vs. 48% for Schwarzenegger. Given the apples and oranges nature of these numbers, things aren’t looking good for Gray.

    It continues to strike me as odd that our techno-populists, who normally have so much reverence for grass-roots democracy, are so bitterly and angrily opposed to this recall.

    There must be something in the equation I’m missing that makes it so horrible to give the voters a chance to speak.

  • Nick

    “There must be something in the equation I�m missing that makes it so horrible to give the voters a chance to speak.”

    Tell you what, let’s let Arnold win this election and then six weeks later have another election to recall him. No? Why not? Don’t you want to give the voters another chance to speak?

    And what’s with having to wait until 2004 to get rid of Bush? Let the voters have a chance to speak and have an election next week. And so on.

  • Dee

    It’s interesting, the supportive comments that have been made in this thread for the recall. Between wandering over here, and listening to Congressman Kucinich’s opinion on CNN yesterday, I have to admit I have a number of mixed feelings on the events in CA. On one side of the issue we have supporters of the Democratic process. Ok, but how Democratic is it really to have a recall signed for on pure political agenda as opposed to a fully fleshed out cause of action? Even more than that, should we accept voters who couldn’t be bothered to hit the polls in the initial election even having a say in what happens after others elect their choice? Somehow that offends me. How is it that someone should over-ride my active participation in the election process if they couldn’t be bothered to get out and mark their own ballots in the first place?

    Next, I’m inclined to agree with what Congressman Kucinich said yesterday about the energy crisis and its root cause-”I mean, look at it this way. California got into economic trouble, among other reasons, because of the Bush-Enron corruption, which resulted in energy prices going through the roof. So Gray Davis, in effect, is paying for George Bush’s sins.”. That doesn’t diminish Davis’ culpability through other mishandling of the situation if it exists, but as yet I haven’t seen any evidence of it. In considering that part of the equation I get two questions. 1. Do we really want to remove Davis when the majority of the blame rests with someone far more powerful than he? And 2. Is the cost to California worth the endeavor, that is will the problems get resolved faster under new Governorship?

    Frankly, I don’t know the answers, but the entire scene is troubling to me. Last point, soeone further up said that now the recall provision has “teeth to it”. Ok, but shouldn’t those teeth be a little less easy to clamp down on the Governor than they currently are? I mean how easy do we want it to be to reverse a legitmate election? If the recall is even partially about giving teeth to the provision, and I don’t believe it is, then I have to stand up and say its wrong. That’s just not a valid argument for reversing the votes of the majority of the State. We shouldn’t engage in actions like this simply because we CAN. It’s a dangerous precident to set.

  • Anonymous

    Richard –

    first, you quote poll numbers putting your guy (yes, you’re obviously for Arnold) ahead of Davis, and then ask why people are bitter about “giving the voters a chance to speak.”

    No one is angry about giving voters a chance to speak. No one here. But that happens in an “election”. You must be confusing a recall based more on a political basis than fact, with the accepted way of democracy, which is elections, term, elections, term, elections, term, etc.

    Above (or elsewhere here) you also confuse (by equating) the act Impeachment of the Presidential office with the Recall of a California governer.

    Based on both of these, it would appear that indeed you are confused, and are missing something. Don’t be angry about it, it happens to the best of us from time to time.

  • Iain

    There may be no constitution-writing classes, but that doesn’t mean we can’t learn to write them. With near-constant requests for Constitutional amendments in Congress, and some states allowing citizens to change constitutions, it makes sense that politically-interested citizens learn about the process. Get yourself a few books on worldwide constitutions and start writing one for your state, the U.S., another country or some fictional island. I think it’s high time I did that.

  • Chris Hoess

    The complaint that the number of voters against recalling Davis might be larger than the number of voters who selected the winning candidate, and the result thus undemocratic, is based on the erroneous assumption that a vote against recalling Davis is equivalent to a vote for Davis were he running against the rest of the slate of candidates. In fact, a voter who prefers another candidate to Davis, *but prefers Davis to the candidate he believes is likely to win*, might well hedge his bets by voting for his candidate but against the recall. Such a voter would not, however, vote for Davis were he simply one of the field of replacement candidates.

  • jn

    The comments about the energy crisis and Bush-Enron miss the point. Davis is not in trouble because of a single event, such as the energy crisis, but rather a string of missteps and misrepresentations combined with utter lack of personality that draws fellow politicians and voters to him. The energy crisis is a perfect example, the voters are smart enough to know that he did NOT cause this problem, but his lack of action when it was entirely clear a problem was developing, and then his denials that the problem was as bad as many in gov and private sector were saying exacerbated the problem greatly. Had Davis acted with decisiveness and force early on, the problem could likely have been reduced greatly in terms of the economics consequences for the State’s finances. The budget is another example of this, it’s not like th structural problems with the State’s revenue system have not been known, in fact even Davis pledged to correct these flaws in the ’04 budget in campaign speeches last year, but here we are with no leadership in this area and nothing but a sham budget that plays a shell game with tax revenues to satisfy Wall St. and pushes the problem, again, to next year.

    The problem with Davis isn’t Republicans, it’s him. I don’t like the slippery slope consequences of a recall, but I also don’t want to risk the next 3 years on a leader that consistently proves incapable of leading. Even his staunchest supporters seem to rely on the statement of “we could do worse” to explain Davis. I make no apologies for wanting Davis out of office, the future of every Californian is on the line right now and the “disconnectedness” of Sacramento with everyday people needs to be corrected.

    By the way, I find it interesting that so many commentaries focus on the undemocratic nature of the recall, it being a plurality instead of a majority. However, it seems to escape many that Davis didn’t win the last election by a majority, but rather a simple plurality at 47% of the vote.

  • PM

    If we had a legislature made up of intelligent representitives who were not “bought” by the highest bidder, it (legislature) would have impeached Gray Davis. A recall would never have been necessary.
    Our state government is and has been guided for too many years by special intrests groups that don’t give a damn about the citizens of California.
    Redistricting that has been allowed to happen in the last 20 years has made it impossible for common working stiff to have any “say” in who gets elected. Our elected Representives are suppossed to look out for the common good and welfare of all the citizens. Because they don’t is why we have so few registered voters and fewer yet that do vote.
    Follow the money!

  • Brian Esler

    This recall is not about representative democracy — it is about a very small vocal subset of the voters (mostly Republican) who want to undo the results of the last election — much like the Clinton impeachment shenanigans. It is an astroturf campaign by the Republicans to put California’s 54 electoral votes in play — and Schwartzenegger is their chosen Trojan Horse to do so (for more analysis of that, see Dana Milbank’s and Mike Allen’s great reporting here: http://www.washingtonpost.com/wp-dyn/articles/A56084-2003Aug13.html?referrer=email). If you want another four years of Bush, you can quibble about state’s rights, electoral colleges, etc while Arnie steals the Governor’s mansion with less votes than Governor Davis. I hope Davis and Bustamante follow Professor Lessig’s suggestion — and for those who want domestic regime change in 2004, it has got to start with keeping GW from utilizing this recall effort to further his reelection.

  • jn

    with Davis carrying a 70% disapproval rating, the recall is much broader than just binary political affiliations.

    latest Field poll of 1,000+ respondants (60% registered voters, the rest “likely to vote”) show that 27% of registered Democrats will vote to recall Davis, with another 6% undecided. Latino voters back the recall 55 to 35%, despite Davis’ pandering to that block by signing the law this week that allows illegal immigrants to get drivers licenses… the same law he vetoed last year and said it would make it easier for terrorists to get identification cards. 59% of independent voters in the State favor recalling Davis, that’s a huge number in an important block of voters. 23% of polled Democrats think he should just resign now.

    Also, to show how little effect Davis has on the Democratic party, it appears that Senator Lieberman isn’t even aware that he’s been governor for almost 5 years when he said it was a terrible idea to throw someone out of office in the first year because of unpopularity.

    By the way, I think the last day to register for the Oct. recall is Sept. 22.

  • Anonymous

    jn, do YOU understand what the “problem” is with the deregulation and control by the rich undermining the truth and clouding the real things that go on, which you and I rarely see? Even the best of politicians have been dragged through the mud by lies, misrepresentation and fraudulent claims. Did Davis stand up to these people? Yes! But it takes time for people to find the truth through the cover-ups and cowardly reporting that goes on in America these days.

    And it is the people who call themselves Republicans that are the problem- to you, me and the constitution. You’re buying the smoke screen so the same old stuff goes on, and on and on…

    You may want to dig a little deeper, like reading:
    “Californians have found the solution to the deregulation disaster: re-call the only governor in the nation with the cojones to stand up to the electricity price fixers. And unlike Arnold Schwarzenegger, Gov. Gray Davis stood alone against the bad guys without using a body double. Davis called Reliant Corp of Houston a pack of “pirates” –and now he’ll walk the plank for daring to stand up to the Texas marauders.”

    http://www.gregpalast.com/detail.cfm?artid=257&row=1

    Read more, feel more, care more, think more jn.

  • Ken

    Prof Lessig,
    There is one point on which your reasoning is not quite correct. When you talk about Davis getting, say, 49.9% of the vote, that includes not just voters whose top preference is Davis, but also voters whose second choice is Davis; whereas his replacement’s winning plurality comprises only first-choice votes. Given that voters can effectively cast a second-chioce ballot for Davis, but not for any other candidate, it’s not clear to me whether the procedure puts Davis at a disadvantage.

  • jn

    I’m not quite sure if I could even respond to the “control by the rich” comment… but I do wish to comment on the deregulation related piece of it. I can only assume that the deregulation you refer to is that of the Cal energy marketplace that precipitated the “energy crisis”. You will find no disagreement that California’s attempt at energy market reforms was severely flawed, and the Assembly and Senate hold more responsibility for that than any other body. They debated, formed, and passed the plan, one that made too many compromises in order to get the required support, and of course we know now that those compromises created fatal flaws in the plan that resulted in the marketplace manipulation.

    Having said all that, Davis entered his first term with a $9 billion budget surplus and great credit. The energy crisis, and the State’s move to become a necessary player in the market burned off around $12 billion on the low side. What that means is that the surplus was largely consumed, irrespective of any attempts to recover the funds through rate increases and legal action. What that does NOT explain is the fiscal deficit that the State came into the current budget cycle with, $38 billion. Even as we enter the new fiscal year we are assured that $9 billion of deficit is waiting for us next year. Our state credit rating is slightly above junk, because the Street does not have confidence in the state governments ability to fix structural problems on the revenue side, or control spending that has consistently risen faster then revenues (and faster than inflation) on the expense side. Bottom line, anyone that thinks Davis’ problems are solely because of the energy crisis is naive. The Governor is guilty of gross financial mismanagement, and while not crimminal by any stretch, it’s enough to warrant his removel from office.

  • Julie

    Your comment reminds me of the thief “leader” (how he became President) of this Republic, who’s managed to feed the industrial-war-complex (that big empty, un-accounted-for black whole money sucking, people-hating conglomerate) and unbalance a liberal-produced balanced budget, while we the people become poorer and poorer and less protected by our constitution. He’s the one who needs to be gone-he and his globilization croneys.

    Thanks for your over-view, jn, and rationalizations of attacks on well meaning, good hearted men, while the evil-doers cloud the meaningful issues. I happened to have loved the protections FDR and other decent men provided for us. Its back to the money flowing too freely for war only, a not any peace making, that creates the bigger problems I see brewing right now. Perhaps its always been this way and will be ever-more. I for one will fight and demand to follow values that are quite different, however. Dennis is the only one who will persevere and not negotiate with people who don’t consider everyone in the solution. Politics just isn’t much fun most of the time…it’s time it became so. People are important- and Dennis knows this. Power to the people-someday, someway.

  • Ken

    The recall election ballot will present the voter two questions, in essence:

    (1) Do you want Davis to continue as governor?

    (2) If Davis loses, which one of the hundreds of alternative candidates do you want to take over?

    Usually in an election between mutually exclusive alternatives the voter is simply asked to make one choice between the options. For example, in a presidential election you’re not asked “Do you want Clinton – the incumbent – re-elected; and second, if he loses, what is your preference between Bush, Nader, etc.?” So what rationale did the CA legislature have (back in 1911) in setting up the recall election this way, as a two-part question, and does this make sense? I want to address this question because it leads to some very fundamental issues at the heart of our democratic institutions.

    The basic rationale, I suppose, is a desire to allow the incumbent’s – Davis’ – supporters the opportunity to both vote for Davis but still have their preference between alternative candidates counted in the event that Davis loses, i.e., they need not “throw away their vote”, as do third-party voters in a presidential race. In this sense, the recall voting method works to Davis’ advantage; although some argue that it disfavors Davis because he must gain a majority (> 50%) to win, whereas alternative candidates need only a plurality. (With hundreds of candidates, a plurality could theoretically be The recall election ballot will present the voter two questions, in essence:

    (1) Do you want Davis to continue as governor?

    (2) If Davis loses, which one of the hundreds of alternative candidates do you want to take over?

    Usually in an election between mutually exclusive alternatives the voter is simply asked to make one choice between the options. For example, in a presidential election you’re not asked “Do you want Clinton – the incumbent – re-elected; and second, if he loses, what is your preference between Bush, Nader, etc.?” So what rationale did the CA legislature have (back in 1911) in setting up the recall election this way, as a two-part question, and does this make sense? I want to address this question because it leads to some very fundamental issues at the heart of our democratic institutions.

    The basic rationale, I suppose, is a desire to allow the incumbent’s – Davis’ – supporters the opportunity to both vote for Davis but still have their preference between alternative candidates counted in the event that Davis loses, i.e., they need not “throw away their vote”, as do third-party voters in a presidential race. In this sense, the recall voting method works to Davis’ advantage; although some argue that it disfavors Davis because he must gain a majority (> 50%) to win, whereas alternative candidates need only a plurality. (With hundreds of candidates, a plurality could theoretically be

    The above split-vote scenario illustrates a fundamental flaw in our democracy: In a plurality vote with more than two alternatives, the election result doesn�t necessarily represent the clear will of the majority; it may simply indicate which political constituency has the fewest viable alternatives to choose from. The phenomenon is evident in presidential elections. For example, consider the following presidential vote results:

    1992 Perot 18.9%, Bush 37.4%, Clinton 43.0%
    1998 Nader 2.7%, Gore 48.4%, Bush 47.9% (but Bush wins electoral college by a hair line)

    In each case, how do you think the election would have turned out if third-party voters had not “thrown away their votes”, and chose instead to voice their preference between the Democrat/Republican contenders? (And how many actually made that choice, masking their true preference?) We have a two-party system for the basic reason that our simple-minded �one-man-one-vote� system does not work when there are more than two viable options on the ballot. If you bring in a third party on the liberal side, it splits the vote on the left and the election goes to the Republicans. Bring in a third party on the conservative side, and the seesaw tilts toward the Democrats. Considering the destabilizing effect of a third party in a presidential race, it’s evident that in a race with hundreds of contenders chaos will reign. (Some people seem to welcome chaos as some sort of “flowering of democratic expression”; I don’t.)

    So how can you reasonably ascertain voter preference in a 3-way (or 300-way) election? Actually, it’s quite simple. The CA legislature had the right idea in allowing voters to express their preference for or against Davis independently of their preference for any other candidate; the idea just needs to be carried a step further. Basically, the question that the ballot poses to the voter needs to be slightly re-worded: Instead of asking the voter which (single) one of the hundreds of candidates (including Davis) is the most acceptable, the ballot should instead simply ask the voter which candidate or candidates are acceptable. The question does not presume that the voter has a single clear of preference of a single candidate over all others – they may vote their approval for as many candidates as they wish. The candidate with the most votes (i.e., the one who is acceptable to the most voters) wins.

    This “approval voting” method is similar to the current recall election procedure, except that instead of just treating just Davis specially, it effectively gives the same special treatment to all candidates in the sense that it is equivalent to asking a separate question for each candidate,

    (1) Would you approve of Davis as governor?
    (2) Would you approve of Schwarzenegger as governor?
    (3) Would you approve of Bustamante as governor?
    etc.

    Voters who have a clear preference for one political party, but no strong preference between their party’s candidates, would vote their approval for all acceptable candidates, thereby eliminating the “split vote” syndrome. Third-party voters would not be “throwing away their vote”; the presence of third parties would not destabilize the election process; and the process would no longer impede third parties from gaining true political representation.

    Approval voting seems so simple, so rational, and so common-sense – so why hasn’t it caught on? Probably because the average guy on the street has never heard of it or doesn�t understand it. Hopefully the recall election will give the press, polling organizations, and civics educators the opportunity and the motivation to bring these issues to the forefront of public attention and catalyze the political will to upgrade our outmoded, irrational electoral system.

    Ken Johnson

  • Ken

    Seems that the html parser cut out part of my previous post. Here’s a repost of the corrupted paragraph:

    The basic rationale, I suppose, is a desire to allow the incumbent’s – Davis’ – supporters the opportunity to both vote for Davis but still have their preference between alternative candidates counted in the event that Davis loses, i.e., they need not “throw away their vote”, as do third-party voters in a presidential race. In this sense, the recall voting method works to Davis’ advantage; although some argue that it disfavors Davis because he must gain a majority (> 50%) to win, whereas alternative candidates need only a plurality. (With hundreds of candidates, a plurality could theoretically be less than 1%.) In either case, why bias the voting procedure for or against Davis? I think it’s a good idea to allow Davis’ supporters to have their alternative preferences counted, but why not make it work the same for all candidates? For example, suppose I’m an average Republican and my voting preference is for either of two leading Republican candidates who are running against a single front-runner Democrat. If my first choice (whom I might have chosen by the toss of a coin) loses, why should I not also (like Davis’ supporters) have my runner-up preference counted? What I would really like is for my ballot to effectively say “I want either one of these two Republican candidates elected – which one, I don’t care; I just know that I don’t want any of those other characters on the ballot to win.” What would probably actually happen in this scenario is that the Republicans’ vote would be split between their two leading candidates and the election would go to the front-runner Democrat, even though a clear majority may prefer a Republican (any Republican) over the Democrat.

  • http://www.4adasigns.com Anonymous

    I read in the Los Angeles Times (I believe, or perhaps on an official California site on the web) that the recall law says that if the person elected to replace the governor, if the recall is successful, refuses to take office, or is ineligible because of a felony, then the Lt Gov would take office. However, since Cruz Bustamante is running, one needs only to vote for him rather than for a replacement. It appears elementary to me that the sane way to vote is against the recall, because of the obvious stand that the governor did nothing illegal and therefore should serve out his term, and that the recall is disruptive and expensive for the body politic, and then vote for Bustamante, the Lt Gov, the natural replacement because he was elected by the people for exactly that position.

  • Pigg

    Sir,
    I found your sites interesting. I would like to investigate/start a movement(maybe a petition) to change, at least the presidential election, to popular vote. Your response/advise is welcomed.
    Pigg