Why Did California Adopt the Recall?
Mr. Spivak is an attorney in New York, and received a Master's in History from Brooklyn College. His Master's thesis explored the history of the recall.From the drafting of a new California Constitution in 1879 until 1910, political life in the state was dominated by a single entity, the Southern Pacific Railroad, which was laser-focused on maintaining its profit margins and monopoly on power. According to a leader of the anti-Southern Pacific movement: "There was only one kind of politics (in California) and that was corrupt politics. It didn't matter whether a man was a Republican or a Democrat. The Southern Pacific Railroad controlled both parties, and he either had to stay out of the game altogether or play it with the railroad." With its massive war chest, the Southern Pacific was able to crush all comers until the progressives, a political movement aimed at lessening interest group domination of government, swept the country. The prime weapon the progressives championed was what they referred to as "direct democracy," which included the primary election, the direct election of senators, the initiative, the referendum, and the recall.
Among the leaders of the California branch of the progressives was Dr. John Randolph Haynes, who formed the Direct Legislation League of Los Angeles in 1900. While the Socialist-Labor Party and the Populist Party had included versions of the recall (called the "imperative mandate") in their party planks in the 1890s, Haynes is widely credited with being the inspiration behind the recall. Two of the leading historians of California's recall, Frederick Bird and Frances Ryan, described Haynes's impetus for pushing for the recall: "[Haynes] had come to the conclusion that the ordinary political panaceas were of no avail ... and that the only hope for civic progress lay in enabling the honest majority of people to concentrate definitely on some clear-cut principle or project."
Haynes first set his objectives on the city of Los Angeles. In 1900, he managed to be appointed to the Los Angeles charter revision committee. Believing that the system of representative government as practiced in most cities did not represent the people, he said in a report to the freeholders board that: "Inefficiency, extravagance and corruption characterise the management of city affairs by and for interested cliques while the mass of the citizens are helpless till the next election."
A new charter, with a recall provision included, was adopted in 1903. The recall was used several times in ensuing years, resulting in the ouster of several councilmen and, in 1909, of Mayor A.C. Harper. Following Los Angeles' lead, several California localities adopted the device. Other states also began taking up the recall. The first state to approve the recall was Oregon in 1908, which had already adopted the initiative and referendum several years before. California reformers, hoping to capitalize on the successes of the progressive movement, founded the Lincoln-Roosevelt League in Los Angeles in 1905. These reformers scored some victories, including the conviction of San Francisco Boss Abraham Reuf and the institution of a party primary system, but ultimate success would elude them until they captured the high offices of the state government.
The gubernatorial election in 1910 provided just such an opportunity for the League. The Democratic party was once again fielding Theodore Bell for governor, after he ran a strong, though losing, race in 1906 based on his opposition to the Southern Pacific. However, the reformers, aware of California's Republican leanings, looked for a strong candidate to win the Republican primary. After some searching, they finally convinced the second prosecutor in the Boss Ruef graft trials, Hiram Johnson, to accept the position. While at first reluctant to be the League's standard bearer, Johnson proved to be an excellent choice, running his campaign as a crusade against the railroad.
The Southern Pacific's hegemony finally cracked as Johnson defeated four other candidates to take the nomination and carried other progressives to victory on his coattails. Johnson then went on to defeat fellow progressive Bell, whom he falsely accused of accepting the support of the Southern Pacific. Johnson won the general election by a margin of 177,000 to 155,000.
The election was soon followed by one of the most noteworthy sessions in the history of the California state legislature. Hiram Johnson set the tone for the session with his inaugural speech in which he asked: "How best can we arm the people to protect themselves hereafter? " In an answer to this question, the legislature's first actions were the direct democracy provisions. The initiative and referendum were quickly approved. The recall, however, ran into trouble.
Many progressives believed that it was imperative that the recall include the judiciary, as abuses of judicial power were considered instrumental in the success of the Southern Pacific machine. Haynes argued that the Southern Pacific's domination of the judiciary exceeded their power over the other two branches of government. Without including the judiciary, the progressive leaders argued, their reforms would not be safe. Johnson said that: "Under an elective system the Recall should be applied to all officers. It will make no judge weaker, nor a strong judge less strong. It will be a warning and a menace to the corrupt only."
However, judicial independence has been a cherished doctrine of American politics,
albeit often observed in breach. Opponents of the judicial recall, even some
progressives, believed the country must have "judges with courage to decide
against the majority....". Senator Charles Wheller, a progressive Republican,
described the recall of the judiciary as a "strike at the very foundation
of the government in which I live...."
The furor over this issue led the Committee on Direct Legislation, which framed the constitutional amendments for the Republican State Central Committee, not to include the recall of the judiciary in the original draft. The fight heartened the conservative opposition, as the Los Angeles Times said, "the sentiment here is strongly against going to that extreme [the inclusion of the recall of judges]."
The topic of judicial recall led to an "oratorical duel" in a hearing with nearly all the members of the legislature present. Senator Wheller squared off against progressive hero and almost martyr, original San Francisco graft prosecutor Francis Heney (Heney was shot in the head during the trial). Wheller painted an alarming picture, declaring the adoption of the judicial recall as causing the "last of the republic of our fathers...we will pass from a constitutional democracy built by them, to a pure democracy and all its dangers."
Heney's speech was heavily quoted by the anti-progressive Los Angeles Times, in a front-page story "Heney Violently Assails the United State Constitution." According to the Times, Heney spent his time questioning the basis of the constitution, arguing: "The right of the [United States] Supreme Court to pass on the constitutionality of the acts of Congress was a stolen right." The United States Supreme Court's repeal of the income tax, a highly controversial decision, was cited as a prime reason for judicial recall. In the eyes of many progressives, the courts had proved themselves the tool of the moneyed interests. While the ignominy of the income tax decision was acknowledged by opponents, Wheeler responded that there already existed sufficient methods to remove judges.
The progressives were concerned about their chances of success. In a letter to Haynes, Johnson expressed "grave doubts" on the judicial recall's prospects. However, the judicial provisions in the recall survived. Bird and Ryan attributed the tide being turned to the actions of the state's Supreme Court. Four members of the court signed an order for a rehearing in the San Francisco graft trials. This led to an uproar against the court, spurring the legislature into action. It quickly began investigating the justices and adopted the recall, including the judicial aspect. In the Senate and the Assembly, 106 legislators voted for the recall and 14 members against. Franklin Hichborn, a leading progressive journalist covering the California Legislature, cited the vote for the recall as "unique." "Every member of both houses voted for or against it. Seldom, if ever, has the entire vote of the California legislature been cast for a measure.... Never before, probably, had a measure before the California legislature been so thoroughly argued and discussed."
The leading conservatives of the time remained unwavering in their opposition
to the recall. Leading the charge was the Los Angeles Times, which repeatedly
referred to the direct democracy provisions as "freak legislation."
The Times editorialized that the passage of the recall "show[ed
the] remarkable caprice of ballot wielders." Interestingly enough, the
Times was also a leading opponent of the Southern Pacific.
The progressive reforms were brought to the people to approve in October, with twenty-three total amendments being voted on, including such notables as women's suffrage and all three direct democracy provisions. Twenty-two of the amendments passed, with the recall garnering the second largest vote total.
The recall was quickly tested against state office holders, with three state
senators facing a recall vote within the first three years after its adoption.
After this burst, the state recall went into an 81-year slumber, with no California
state officer facing a recall vote. Since its awakening in 1994, four members
of the legislature have faced a recall vote, and now Governor Gray Davis must
fight for his political life. Even with infrequent usage, the recall has not
lost its power.
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zeeekaneek - 10/19/2003
Josh Greenland - 9/25/2003
This lifelong Californian agrees with you. I'm not, BTW, a Republican, conservative or anything other than well left of center.
Dennis Wilson - 9/23/2003
From today's San Francisco Chronicle:
San Francisco Chronicle
Tuesday, September 23, 2003, page A21
Recall ballot is not how its architects envisioned
by Jason A. Bezis
Imagine that you have been selected as a juror for a 60-day trial with billions of dollars at stake and consequences that will reverberate around the world. Day after day, amid the distractions of your regular life, opposing sides attempt to sway the outcome as they ostensibly educate you. Ultimately, you are forced to render a verdict without knowledge of the formal charges and without closing arguments to distill and clarify weeks of testimony.
As California voters ponder removal of their highest elected official, few are aware of the official reasons for the proposed recall of Gov. Gray Davis and his official justification for his conduct. Although the Progressive-era architects of California's recall system envisioned a process infused with deliberative and thoughtful consideration of the official's alleged misconduct,
the Legislature removed a significant procedural safeguard in the 1970s.
When voters ratified the first recall provision of the state Constitution in 1911, it stated in part, "On the official ballot at such election shall be printed, in not more than two hundred words, the reasons set forth in the petition for demanding his recall. And in not more than three hundred words there shall be printed, if desired by him, the officer's justification of his course in office." As voters marked ballots in private booths, isolated from extraneous influences, they were to weigh accusation against answer and make an informed choice.
This inducement to rational decision-making remained enshrined in the Constitution until 1974, when voters gave the Legislature power to determine recall procedures. Lawmakers then touted a new statute that retained pro- and anti-recall arguments on the official ballot.
However, two years later, the Legislature repealed this provision and enacted the current recall law. In lieu of arguments on the official ballot, a 200-word "statement of reasons for recall" and a 200-word answer are mailed to voters with the sample ballot. Hence the official ballot for this election merely reads, "Shall Gray Davis be recalled (removed) from the office of governor?," with no explanation as to why he should be recalled or retained.
The 1976 Legislature acted imprudently. All of California's neighboring states (Oregon, Nevada, Arizona) print the grounds for recall and rebuttal on the official ballot. So do Washington, Colorado and other states with recall laws.
Even though county registrars mail sample ballots to all voters, many are unlikely to see the recall arguments and cast informed votes. While some citizens take their marked-up sample ballots to polling places, others discard or do not read them, erroneously assuming that actual ballots are identical to sample ballot packets.
The Legislature did not foresee the increase of absentee voters, many of whom vote before receiving sample ballots or the secretary of state's voter information guide, which also contains pro- and anti-recall arguments. In 1976,
just 1 in 20 voters voted absentee; in 2002, more than 1 in 4 did. The percentage is likely to be higher for this election because more precincts than usual will canvass entirely by mail as a cost-cutting measure. If one- quarter of a jury rendered a verdict without knowledge of the charges, a good lawyer would move for a mistrial.
Regular elections for fixed terms of office are at the bedrock of the American polity, contributing immeasurably to peaceful transfers of power and to a stable, prosperous society. Because a recall upsets this order, it is not an ordinary plebiscite. In a recall election, voters should comprehend and evaluate the charges against the targeted official; its Progressive framers envisioned millions of individuals reaching carefully considered decisions, not ones based on a popularity contest.
The Legislature ought to amend the Elections Code to require that recall ballots contain the brief statement of grounds for recall and the official's concise justification of his or her course in office. The original California recall law and neighboring states have it right. All voters should know the formal charges against the officeholder and read his rebuttal immediately before they cast their ballots.
Jason A. Bezis is a lawyer in Livermore.
Jure Tplak - 9/23/2003
Dear Mr. Spivak,
I am looking for your email address but I cannot find it anywhere. Can you please contact me via firstname.lastname@example.org
I am a researcher at the UCLA law school presently working on recall issues.
James Fremont - 9/17/2003
Mr. Round's proposal is fine if you ignore Mr. Spivak's history of Big Money strangling democracy, or think it is not being repeated today. If, on the other hand, you consider the corrupting influence of massively expensive political campaigning and fund-raising to be a serious concern, then it might be better not to weaken California's recall, at least not until better mechanisms are put in place to curb the role of money in elections.
Tom Round - 9/16/2003
I notice that some States (Alaska, from memory) only allow recall where an official has been convicted in mid-term of a criminal offence.
Perhaps there is a case for constitution-writers to limit the voters' power of recall (and the legislature's power of impeachment, to be consistent) to cases where a court has found an office-holder guilty of a serious crime -- say, liable to a year's imprisonment or more (even if the actual sentence is lighter). That way, you would neither have (1) "elected officials being dismissed from office by unelected courts" -- the final decision would rest with the voters or their representatives, but also nor (2) "the sore losers of the last regular election want another spin of the wheel to see if they can win" (a criticism levelled at the proponents of Clinton's impeachment and of Davis' recall) -- ie, recall/ impeachment would be lawful only where the official had been judged by an impartial tribunal to have actually broken the law.
Dennis Wilson - 9/15/2003
After all the uproar about Arnold here and elsewhere, finally an actual historical account of the California recall provision.
I still think it ought to be incumbent (no pun intended) upon recall proponents to show why they cannot wait for the normal election cycle. There is an argument that could be made in this regard in California today, but the proponents did not, and have not made it to my satisfaction. This particular recall is thus suspect in my eyes, and that is why I voted (absentee) against it last week. If the courts throw out the recall, they are not necessarily "disenfranchising" me, but they are acting irresponsibly in my view. The citizens should have a clear right to hold a recall, and tpovote it down if it is motivated by dubious reasons (as I think this one is), and that right should not depend on the bureaucracy of hanging chads or convoluted legalizing.
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