The California Gubernatorial Recall Debate and the Courts:
Why Litigation Has Begun (and Likely Will Continue)

We are months away, at least, from an election to decide whether or not to recall California's governor, Gray Davis. Yet three lawsuits have already been filed in connection with the recall.

In one suit, a group of recall proponents sued certain counties that they allege are not verifying signatures on recall petitions fast enough. In another suit, anti-recall forces are trying to void certain recall petition signatures based on the allegation that some of the signature gatherers were not qualified to circulate petitions. In a third suit, recall proponents have asked courts to clarify whether county clerks can be asked to investigate the qualifications of petition circulators.

Meanwhile, in yet a fourth development, a complaint has been filed with the Federal Election Commission against recall financial backer Rep. Darrell Issa. It alleges that Issa's funding of the recall violates federal campaign finance laws.

These lawsuits and administrative complaints may not be the last that we see in connection with the recall. California, and other states, have very little experience with statewide recalls - and thus many important questions relating to such recalls remain unanswered.

California's recall statutes are mostly untested, and many other states are in the same position. Indeed, only one other governor has been recalled in the history of the United States, and that was in North Dakota in 1921.

In this column, I consider some recall questions that may arise during the attempt to recall Governor Davis. I also consider why the trend has been to address questions like these in the courts, rather than through state election officials or state legislatures.

Questions The Recall May Raise

Here are just a few of the questions the California recall may raise - none of which has a hard-and-fast answer.

Suppose Davis resigns before the California secretary of state certifies that recall proponents have submitted enough signatures to trigger a recall election. Does the election still go forward?  

Suppose the recall election qualifies for the ballot and no Democratic candidate submits nomination papers to become a candidate within the 59 day time limit before the election. May a Democratic candidate run as a write-in candidate?

Suppose more than half the people vote for the recall of Davis. Does the California Constitution mandate, as some have suggested, that the Lt. Governor automatically becomes the next governor rather than whoever wins the second part of the recall ballot?

On the whole, it's fair to predict that we will continue to see election law litigation used as part of a political strategy in the context of the California recall.

The Modern Trend of Litigating Election Controversies, and the Reasons For It

The same pattern of election law litigation as political strategy has marked other recent election controversies as well - with the 2000 Florida election that ended with the United States Supreme Court's Bush v. Gore decision as the most prominent example. There, Republicans ultimately used the courts to their advantage (though they had a close call with the Florida Supreme Court first). But in other recent cases, it is Democrats who have been the litigation victors.

Last year, for instance, litigation arose when New Jersey Democratic Senator Robert Torricelli decided to withdraw his candidacy in the face of a scandal. Democrats went to court seeking an order requiring election officials to put a replacement name on the ballot. The New Jersey Supreme Court held that they were entitled to such an order. Republicans sought U.S. Supreme Court review, but were unsuccessful in getting the New Jersey opinion overturned and the replacement candidate excluded from the ballot.

Another controversy about listing a replacement on a ballot occurred after Minnesota Senator Paul Wellstone died in an airplane crash. Democrats went to court seeking to get a new set of absentee ballots that bore the name of their replacement, and not that of Wellstone. In the end, they got some, but not all, of what they wanted from the Minnesota Supreme Court.

Meanwhile, the trend toward increased election law litigation is evident even on the docket of the U.S. Supreme Court itself.  From the period 1901-1960, the Court decided an average of 10 election law cases per decade with a written opinion. In contrast, from 1961-2000, that figure jumped to an average of 60 per decade.

Why is there so much election litigation? One answer is that controversies inevitably arise, and unlike other countries, America lacks a history of nonpartisan, professional elections officials who can resolve them.  

During the Florida recount controversy, for instance, Democrats derided former Florida Secretary of State (and current member of Congress) Katherine Harris as a party hack who did Bush's bidding.  More recently, one commentator has referred to California Secretary of State Kevin Shelley as "the new Katherine Harris," based on a position he had taken with respect to the timing of signature verification of recall petitions in the counties.

Why the Trend of Litigating Election Controversies Is Bad For the Courts

The litigation explosion in the election law field only further politicizes the judiciary - particularly when it is plain which party a particular result will favor.  When potential winners and losers are clear, and courts end up resolving controversies along party lines, people cannot help but wonder if judges are influenced by their partisan preferences.  

Again, the 2000 Florida election is a case in point. A Democratic-dominated Florida Supreme Court issued an opinion that helped Al Gore. Then the Republican-dominated U.S. Supreme Court reversed that opinion, effectively handing the Presidency to George W. Bush. Observers might be forgiven for believing that, at least for some of the judges and Justices, party affiliations may have made a difference.

Whether or not that was the reality, appearances alone can be damaging. Even when, in truth, courts are conscientious in making the best decisions they can given the facts and law, the guessing game as to what role partisanship may have played is inevitable.

Why Legislatures Should Periodically Audit Election Laws To Preempt Lawsuits

The courts often cannot take themselves out of these controversies, for it is their job to interpret the law, including filling in the gaps in election statutes. As a result, it is incumbent on legislatures to save them, insofar as is possible, from the appearance of impropriety that results when a court decision affects - or changes - an election's outcome.

What, specifically, can legislatures do? First, they should draft clear election laws in the first place; the Florida laws at issue in 2000, for instance, were hardly a model of clarity. Legislators should ensure that ballots are simple and easy to interpret, the laws are drafted to leave as few gaps as possible, and election administration departments are adequately funded.

They also should anticipate potential problems, and create dispute mechanisms to handle controversies in advance, before a live controversy arises.  Toward this end, legislatures should periodically audit their election laws. In doing, they should ask two basic questions: What problems might arise, and how can we preempt them? And, if problems do arise, despite our best efforts to preempt them, how might they be resolved in a way that does not unnecessarily involve the courts, and does not appear to change the result of a particular ongoing or completed election?

Had California done such an audit, it may well have noticed that its signature threshold for triggering a recall is relatively low. Other states typically require recall proponents to gather at least twice as many such requirements as California does - and California should have considered whether to mirror their stricter requirements to make the recall process more difficult to invoke.

Clear rules as to when the last date the elected official can withdraw from office, and prevent the recall from going forward, are also missing. So are express rules governing write-in candidates.

More broadly, an audit might have prompted California to consider alternatives to its current recall system: a single recall ballot, with no prior primary or runoff election for the recalled official's successor. This kind of system virtually guarantees that the successor will not garner the support of a majority of the population. In the California gubernatorial recall, a successor might be elected with the support of as little as 15% of voters.

In sum, California likely is in for a bumpy ride over the next few months, as election officials and the courts strive to fill in gaps in California's recall laws. Those gaps didn't need to be there in the first place. And if courts are called upon to fill them, and seem to be deciding elections in doing so, voters should remember that it's the legislators who left the gaps, not the courts stuck filling them, who should be the targets of their ire.

In the end, how those gaps get filled--and who fills them--may well determine who will finish out Gray Davis's term as governor of California. It won't be pretty. And it didn't have to be that way.