loophole executives
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 No doubt there is still strong support for the (imho outdated) institution of the Electoral College.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.
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Comments (105)
There was such a candidate, although he just withdrew since Bustamante entered the race.
Brian Flemming for Governor
http://www.slumdance.com/flemmingforgovernor/
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.
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
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.)
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.
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.
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.
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?
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):
"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.
"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.
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?
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.
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.
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
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.
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
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.
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.
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.
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.
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.
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.
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.
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?
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
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.
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.
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.
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.
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?
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.
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?
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.
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.).
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.
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.
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.
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.
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.
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.
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.
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?
"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.
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. :-)
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.
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.)
"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.
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.
Incidentally, Wi-Fi is not an End-to-End system, but it's still groovy.
Shocking, isn't it?
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
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.
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.
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
“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.
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
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?
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.
;)
"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.
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
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.
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.
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?
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.
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.
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.
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.
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
"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.
"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.
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 ?
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.
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
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.
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.