In summary

If the polls are correct, the recall election has a greater possibility of an absurd result, and it’s time for the state Supreme Court to weigh in.

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By Michael B. Salerno

Michael B. Salerno is a clinical professor emeritus at the University of California Hastings College of the Law and a co-author of a treatise entitled The California State Constitution,

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Mark Paul, Special to CalMatters

Mark Paul is the former deputy treasurer of California and co-author of California Crackup,

Imagine picking up the newspaper the day after the California gubernatorial recall election and reading an entirely plausible result: 51% of Californians voted to recall the governor and 49% voted to keep him in office. However, he will be replaced by a candidate who appeared on the second part of the ballot and finished first in the crowded field with a plurality of only 24% of the vote.

The way the California Constitution is currently interpreted, the candidate receiving 24% support, the “plurality” of votes, becomes governor despite the recalled governor receiving 49% support. This makes no sense.

In November 1974, the recall provision, originally written in 1911, was replaced by the voters with the current language. The California Constitution now states if voters successfully qualify a recall, “an election to determine whether to recall an officer and, if appropriate, to elect a successor, shall be called.”  The second part of the recall ballot is a so-called “replacement election.”

The first recall of a governor in the state’s history occurred in 2003. At that time, the California Supreme Court received a petition for writ of mandate/prohibition in connection with the recall, to compel the Secretary of State to omit from the recall ballot any list of candidates to succeed the governor if the majority favored the recall (the second part of the recall ballot, the replacement election).

The court denied the petition in a brief order stating that a replacement election was intended in the case of a gubernatorial recall based on “the history of the recall procedure.” Odd reasoning because, at that time, there was no “history” of a gubernatorial recall, or the recall of any statewide officer specified in the constitution, which provides how to replace one of these officers in the case of a vacancy. 

The state Supreme Court’s interpretation, not compelled by the constitution’s language, creates the possibility Californians will be governed by a person with less support than the recalled governor. A result unlikely intended by the voters.

The court rejected applying another constitutional provision: “The Lieutenant Governor shall become Governor when a vacancy occurs in the office of Governor.” The court reasoned a vacancy does not occur because of the replacement election. This conclusion is circular – a replacement election is proper because a vacancy does not occur due to the replacement election.

The more important question is whether it is “appropriate” to hold a replacement election if the constitution clearly provides for a successor for the recalled official. It is only appropriate (and necessary) to hold a replacement election if the office is left vacant and the constitution does not provide for a replacement. 

A more logical interpretation is that a gubernatorial recall creates a vacancy in the office and the lieutenant governor then becomes governor. 

The lieutenant governor is a person who received majority general election support to serve in an office having few duties beyond waiting to serve as the next governor, if the incumbent is unable to serve. This result is consistent with the language of the constitution and what would occur if the governor were impeached or otherwise unable to serve. It also avoids the odd and undemocratic result of a new governor being elected by fewer votes than the votes received in support of the recalled incumbent. 

If the polls are correct, this recall election has a greater possibility of an absurd result. It is time for the state Supreme Court to reexamine its 2003 order and conclude, in the case of a gubernatorial recall, that a replacement election is both unnecessary and inappropriate.

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