The Green Papers

Brief Background Piece about

Monday 11 August 2003 (updated 15 August 2003)
prepared by the Staff of The Green Papers

The California notion of recalling elected officials before their term is up apparently first surfaced in the City of Los Angeles when the voters of that municipality, on 1 December 1902, approved an amendment to the City Charter which took effect once it was further authorized by the State Legislature early the following year (the Legislature having to give its imprimatur because even municipalities with so-called "Home Rule", as administrative "Civil Divisions" of the State in and of themselves, do not have inherent sovereignty and, instead, are creatures of- and exist principally for the convenience of- the unitary State). From Los Angeles, the Recall concept quickly spread to other Home Rule cities in California by the end of the first decade of the 20th Century.

In 1911, the California Legislature passed a statute authorizing Recall of County elected officials and, at the same time, proposed an Amendment to the State Constitution which would extend these Recall provisions to State officials (a Constitutional Amendment was needed because a mere statute would conflict with the State Constitution's own provisions for Impeachment of said officers by the State Assembly and subsequent Trial upon Impeachment in the State Senate). A majority of the voters in California approved this Amendment (which began with the words Every elective public officer of the State of California may be removed from office at any time by the electors entitled to vote for a successor of such incumbent, through the procedure and in the manner herein provided for, which procedure shall be known as the Recall, and is in addition to any other method of removal provided by law ) on 10 October 1911 and, thus, it became Article XXIII appended to the text of the California Constitution of 1879, as amended.

To those who do not live and vote in California (to whom this background piece is primarily addressed), the most intriguing provisions of the original 1911 Amendment (and ones which survive in the California Recall Election procedure to this very day) seem to be those requiring an election for a successor at the same time as the voters are deciding on whether or not to recall a given elected official in the first place (obviously, a "no" vote on the recall itself would obviate the need for such a successor). These provisions were found within those governing the form the ballot is to take in such a Recall Election, originally reading as follows:

Form of ballot. There shall be printed on the Recall ballot, as to every officer whose recall is to be voted on thereat, the following question: "Shall [name of person against whom the recall petition is filed] be recalled from the office of [title of office]?" following which question shall be the words "Yes" and "No" on separate lines... in which the voter shall indicate... his vote for or against such recall. On such ballots, under each such question, there shall be printed the names of those persons who have been nominated as candidates to succeed the person recalled, in case he shall be removed from office by said recall election; but no vote cast shall be counted for any candidate for said office unless the voter also voted on said question of the recall of the person sought to be recalled from said office. The name of the person against whom the petition is filed shall not appear on the ballot as a candidate for the office. If a majority of those voting on said question of the recall of any incumbent from office shall vote "No", said incumbent shall continue in said office. If a majority shall vote "Yes", said incumbent shall thereupon be deemed removed from such office upon the qualification of his successor. The canvassers shall canvass all votes for candidates for said office and declare the result in like manner as in a regular election. If the vote at any such Recall election shall recall the officer, then the candidate who has received the highest number of votes for the office shall be thereby declared elected for the remainder of the term. In case the person who received the highest number of votes shall fail to qualify within ten days after receiving the certificate of election, the office shall be deemed vacant and shall be filled according to law.

The above quoted provisions of the original 1911 Amendment have since been greatly simplified re: the present form of what is now Section 15(c) of Article II of the California Constitution, which reads as follows:

(c) If the majority vote on the question is to recall, the officer is removed and, if there is a candidate, the candidate who receives a plurality is the successor. The officer may not be a candidate...

such simplification made possible by the various and sundry arcana re: the actual form of the Recall ballot now being left to provisions found elsewhere in the State Constitution, as well as in the California Election Code itself, regarding elections in general. However, the methodology of Recall in California remains basically the same as it was back in the second decade of the last century- that is, a "two-in-one" procedure (i.e., Recall question and choice of a potential successor at one and the same time), although that provision of the Recall procedure (now statutory) only allowing those who also voted on the question of recall itself to then also vote for the potential successor was recently overturned by the courts. [On 30 July 2003, the United States District Court for the Southern District of California held that Elections Code section 11382, which prohibits a voter who has not voted on the first question from voting for a successor candidate, violated the First and Fourteenth Amendments of the United States Constitution. (Partnoy v. Shelley, Case No. 03CV1460 BTM (JFS), RJN, Exh. S.). Secretary of State Shelley does not intend to appeal the court's decision.]

This joining together of Recall vote to the voting for a successor (before anyone can possibly know, of course, whether or not the incumbent will even actually be recalled) was originally, or so it appears, merely a case of "killing two birds with one stone" and, thereby, saving on the cost of what would otherwise have to be two separate elections (one to recall the incumbent, the other [some weeks to months later] to choose a successor to finish the term of office should the recall have been successful)- not to mention also avoiding uncertainty, where not also confusion, as to just who, in fact, might be authorized to carry out the powers and duties of the office in question in the inevitable interim between two such separate elections. Indeed, not only was saving the taxpayers money (as well as avoiding having a recalled incumbent still acting in his elected capacity for a considerable length of time after already having been recalled) an important issue but this "two-in-one" electoral process would also serve to blunt attempts by supporters of an elected official facing a recall petition drive to appeal to the voters on grounds of the eventual costliness of the entire process should a Recall actually succeed when and where continuing to argue the actual merits of the officer in question was no longer a viable option for his supporters.

Such provisions for election of a potential successor at the same time as the recall question itself would be decided did, by the way, appear in the original Recall provisions added to the Los Angeles City Charter in 1903 (although, in that case, there was really only one election- in effect, a wholly new election for the office in question in which the incumbent against whom recall was being sought could, if he so desired, run as one of the candidates for the office he was already holding) but it appears that the current California practice of a two-in-one Recall election (which may have been adopted to specifically keep an incumbent facing recall from running as his own potential successor) dates from the activities of the State Legislature applying Recall to the counties and eventually (once the original Article XXIII had been approved by the electorate) throughout the State in 1911.

List of candidates for the 7 October 2003 California Gubernatorial Recall Election


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