A Mixed Verdict on the California Supreme Court's Decision:
Part Three of a Series on the Recall

By VIKRAM DAVID AMAR AND ALAN E. BROWNSTEIN


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Friday, Aug. 22, 2003

This column is Part Three of a series by the authors on the California recall process. Part One and Part Two in the series may be found in the archive of Professor Amar's work on this site; Part One was also co-authored with Professor Brownstein. - Ed.

On Wednesday, August 20, a federal district judge rejected the ACLU's request to push back California's Oct. 7 recall. The ACLU had challenged the use of outmoded punch card balloting machines in certain highly-populated counties. It argued that people in those counties using outdated election equipment were much more likely not to have their votes accurately counted than people in more affluent counties that use more modern, and more accurate, voting machinery.

This claim was based largely on the Bush v. Gore idea that people in different parts of the state should not have their votes counted differently. Since the ACLU is appealing, it will now be evaluated by the United States Court of Appeals for the Ninth Circuit.

Meanwhile, just two weeks ago, the California high court, in one fell swoop, dismissed all five of the lawsuits brought before it to challenge various aspects of the recall. The suits asserted six independent substantive issues - including two federal constitutional claims. (One of the two was the Bush v. Gore-style claim now pending in the federal courts.)

We think that in dismissing these claims, the California Supreme Court deserves mixed marks. On the one hand, the Court was surely right to reject some of the arguments pressed before it; as we have written in an earlier column, some of the claims being made were legally shaky at best. But on the other hand, the California Supreme Court also missed some opportunities to improve the situation.

The California Supreme Court Should Have Offered More Analysis

To begin, the Court provided the California public a total of only five pages of analysis to defend its reasoning in all five cases. Moreover, those five pages discussed only two of the six claims raised. While we can certainly sympathize with the time constraints the Court confronted, the Court's summary response is disturbing for several reasons.

A recall election seeking to remove a recently elected governor from office is a traumatic political event. It reflects a profound mistrust of the normal operations of government by at least a significant part of the polity - those who support the recall. And it creates comparable feelings of mistrust among other citizens who see the recall as a manipulative subversion of the political process. In such circumstances, government officials - and this includes judges, as well as more overtly political actors - cannot rely on the public confidence they traditionally enjoy . Trust has to be earned each step of the way, as state actors negotiate through this political minefield. And that cannot happen when decisions are reached behind closed doors with little, if any, explanation or justification.

The California Justices may have reasonably worried that any attempt to explain their reasoning in a rushed and abbreviated set of opinions would have lacked clarity, and, accordingly, might be misunderstood. But silence is also a communicative act- and it is equally susceptible to misinterpretation.

Does the Court's summary response to these claims suggest that it viewed them as frivolous and unworthy of a substantive response? If not, shouldn't the Court have said something to justify its refusal to carefully evaluate all of them on the merits?

Failing to Offer Further Analysis Caters to Suspicion The Decision Is Political

More problematically, if the Court does not support its decisions with publicly stated reasons, it opens itself to the charge that no legal grounds for its judgments were provided because they do not exist -that these decisions were grounded on political calculations, rather than legal principles.

Bush v. Gore spotlighted these concerns and the California Supreme Court, like all courts dealing with election challenges today, must operate in the wake of that novel decision. But there is nothing new about the public's wariness of judges being influenced by political interests.

Indeed, when the recall provisions to the California Constitution were adopted, they were deliberately fashioned to apply to judges as well as governors - and it was this aspect of the provisions that was the focus of the ballot arguments addressing the proposed amendment in the early 1900s. The argument in support of the amendment justified applying the recall to judges because judges exercise political power, and may do so for corrupt and improper reasons.

Nor is Bush v. Gore the only shadow that hangs over the California Court. The unseating of Justices Bird, Grodin, and Reynoso 15 years ago - by the voters at an election dominated by political hyperbole - left a lingering taint of judicial vulnerability that the potential recall of a governor arguably accentuates. In political terms, there can be little doubt that rejecting the challenges to the recall was the safer course to take.

In a politically charged atmosphere, there is not much that judges can do to avoid accusations of this kind entirely. Some people will presume that courts act for improper motives no matter how persuasively judges justify and explain their conclusions in terms of accepted legal principles. Still, a full and fair discussion of the competing arguments and a clearly stated explanation of the reasons that led to the Court's judgment will reduce, even if they cannot eliminate entirely, these suspicions.

Where the Court Did Offer an Opinion, Its Reasoning Was Insufficient.

Even in the two cases where the Court did issue opinions, the opinions were not altogether sufficient to explain the results the Court reached. (The two opinions were in Burton v. Shelly - the challenge to the very minimal nomination requirements set by the Secretary of State for securing a place on the successor ballot - and Frankel v. Shelly, which urged that the Lieutenant Governor should automatically succeed to the office of the Governor if the recall is successful.)

First, the Court never explained why it had jurisdiction over the cases. The defendants had raised serious questions regarding plaintiffs' standing to file suit in the California Supreme Court, arguing, instead, that the exclusive power to do so belonged to a quasi-government agency, the Commission on the Governorship. The summary rejection of claims on the merits inspires even less confidence when a court's jurisdiction over the case is dubious.

Second, in the strongest of the five cases, Burton v. Shelly, the Court's reasoning on the merits seemed strained. Here, the plaintiffs challenged the extremely low nomination requirements a candidate for governor must satisfy to have his or her name appear on the ballot.

To appreciate the power of this claim, it's necessary to understand some of the legal backdrop on which it is based. There is no statute setting specific ballot access requirements to be applied in a gubernatorial recall election in California; the Elections Code simply refers to the nominating procedures applicable in regular elections. The Secretary of State, in structuring the gubernatorial recall, borrowed from the requirements set out in a statute regulating ballot access in party primaries - 65 signatures and a $3500 filing fee. As mentioned in an earlier column, this low threshold has generated a field of over 100 successor candidates.

At first glance, the decision to borrow from a provision that sets the bar so low seems like an odd choice. Indeed, several arguments support this challenge. To begin with, the statute setting out the nomination procedures for primary elections explicitly states that it does not apply to recall elections.

Furthermore, California law did designate a specific ballot access requirement for recall elections from 1911, when the recall mechanism was first adopted, to 1976, when it was removed from the Election Codes without explanation. And the provisions in place for those 65 years required, in order to get onto the ballot, signatures equal to1% of the votes cast for the office in question at the last election. (That would translate, in the Gray Davis recall case, to about 75,000 signatures.

Finally, common sense suggests that 65 signatures is an absurdly low threshold for access to a ballot for a statewide office in a political jurisdiction of over 35 million residents.

These contentions deserved a more thorough response than the Court provided.

The Problem with the Way the Court Addressed the Signature Requirement

The California high court raised several important points to support its judgment not to disturb the Secretary of State's decision. It noted that no statutory language explicitly stated a fixed requirement for recall elections. Accordingly, the state official authorized to set a standard deserved substantial deference in exercising his discretion. The Court also pointed out that the same low standard had been accepted (though not necessarily actually employed) by Secretaries of State in prior administrations - implicitly suggesting that consistency with past practice supported the plausibility of this Secretary of State's choice.

The Court's most important argument related to the practical exigencies of the recall framework. The California Constitution mandates that the recall election must occur between 60 and 80 days from the certification of petitions seeking the recall of an official. The California elections statutes also require that the nominating petitions for candidates for statewide office must be filed at least 59 days before the election. The operation of these two provisions together results in an extremely short period - the Court calculated it to be 16 days for this election - during which prospective candidates could attempt to satisfy ballot access requirements. The brevity of that period, without more, seemed to support a low signature requirement.

By comparison, the Court reasoned, demanding that each candidate obtain almost

75,000 signatures or more in 16 days, as the proposed, alternative nominating procedures required, "would risk unconstitutional interference with the ability of any replacement candidate to appear on the ballot."

Perhaps. But California law appears to have higher expectations than the Court regarding the capacity of state citizens to obtain signatures on election petitions in relatively brief periods of time. For instance, the signature thresholds for qualifying a referendum for a state or county ballot are quite high, even though time is tight.

Moreover, as noted earlier, from 1911 to 1976, state law required signatures equal to 1% of the votes cast in the last election for the office at issue. It is true that during those 65 years, candidates in recall elections did have more time available in which to circulate petitions than they do under the present framework. The election still had to be called within 60 to 80 days from the time the recall petitions were certified. But the filing period for candidates to succeed the recalled official remained open until 25 days before the election. Thus, candidates presumably had as many as 55 days to satisfy the 1% requirement.

The fact that the time period for obtaining signatures narrowed (from 55 days to 16 days) at the same time that the 1% requirement was removed from the Election Codes provides some support for the Court's contention that this ballot access threshold is too high - given the time available for obtaining signatures. Still, one may wonder whether satisfying the 1% requirement today in 16 days, given the transportation and communication advances over the last century, is really a more onerous burden than satisfying that same burden in 55 days in the more logistically limited world of 1911.

Ultimately, reasonable people can differ regarding the pragmatic difficulties of satisfying a significant signature threshold in a very short time period. Certainly, there would be far fewer candidates on the ballot if thousands of signatures were required. That recognition should have prompted the Court to evaluate the impact of the number of candidates on the ballot on the rationality and integrity of the election process. But no such analysis was forthcoming.

The Court's Failure to Consider the State Interest In a Manageable Ballot

The majority of the California Supreme Court Justices failed even to discuss whether limiting the number of candidates to a manageable number is an interest of sufficient importance that it should influence their evaluation of the way the Secretary of State exercised his discretion in this case. (One member of the Court, Justice Kennard, did mention this issue in her concurrence, but only to ridicule the idea that there might be "too many candidates on the ballot, giving the People too many choices.")

That perspective is starkly inconsistent with the way the federal courts have evaluated ballot access questions. While the U.S. Constitution may not mandate manageable ballots, the U.S. Supreme Court has made it clear - in Lubin v. Panish, as well as Bullock v. Carter- that "the State's interest in keeping its ballots within manageable, understandable limits is of the highest order."

As Californians ponder a ballot with 135 candidates, they may wonder why this concern was not serious enough to warrant more careful review of the Secretary of State's exercise of discretion. After all, the U.S. Supreme Court has recognized this concern to be of sufficient importance that it justifies constraints on the fundamental right to vote,

It is troubling then, that to the majority of the California Supreme Court, this issue was not even worthy of discussion. That omission is more than regrettable. Sometimes it is only when you draft a full explanation that you see that your result is questionable, and may need to be revised.


Vikram David Amar is a professor of law at the University of California, Hastings College of the Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. Before teaching, Professor Amar practiced at the firm of Gibson, Dunn & Crutcher.

Alan Brownstein is a Professor of Law at UC-Davis School of Law.

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