Today, Explained - Recallifornia

Episode Date: August 30, 2021

California could elect a Republican governor in a few weeks. KPCC reporter Libby Denkmann explains how. And the dean of the UC Berkeley School of Law argues the state's recall election process is unconstitutional. This episode was produced by Amina Al-Sadi with help from Hady Mawajdeh, edited by Matt Collette, engineered by Efim Shapiro, fact-checked by Laura Bullard, and hosted by Sean Rameswaram. Transcript at vox.com/todayexplained. Support Today, Explained by making a financial contribution to Vox! bit.ly/givepodcasts. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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BetMGM.com for terms and conditions. Must be 19 years of age or older to wager. Ontario only. Please play responsibly. If you have any questions or concerns about your gambling or someone close to you, please contact Connex Ontario at 1-866-531-2600 to speak to an advisor free of charge. BetMGM operates pursuant to an operating agreement with iGaming Ontario. The elected governor of New York left office early last week in disgrace. And on the other side of the country, there's a recall election that could kick the governor

of California out of office too. But unlike New York, where Governor Cuomo resigned and was replaced by his lieutenant, the California recall could be a game changer because the conservative could take over. So California is the world's fifth largest economy. There could be a Senate opening in the next year and a governor would have the power to appoint a senator. And of course, if you care about climate change, California has really been on the forefront of efforts to mitigate global warming. And that all could be rolled back with the change of leadership in Sacramento. Libby Denkman is a senior reporter at KPCC Public Radio in Los Angeles.

And the last time we talked about this potential recall on the show, it seemed like a long shot. But now it at least seems like less of a long shot. So we asked Libby to explain how we got here. Republicans in California got a huge boost to their effort to recall Newsom last November when a judge granted a four-month extension on the signature gathering process. They needed 1.5 million signatures to qualify a gubernatorial recall for the ballot. And they were able to do that because they had so much extra time.

The judge reasoned that because of COVID-19, they needed that time to gather signatures. The Republicans successfully qualified the effort for the ballot in April. And then, you know, in the early summer and late spring, things were looking really good for Governor Newsom. From Disneyland and Universal Studios to beaches, state parks and wine country, businesses and patrons are saying goodbye to California's color coded COVID reopening tiers and social distancing requirements. And hello to full capacity and masks off in most cases. They had lifted most of the COVID-19 restrictions on businesses, which really helped the economy pick up. And he had signed this massive budget deal that included $12 billion in spending on homelessness and $600 payments for low income Californians. That really encouraged Democrats in the legislature to go ahead and move up the process of the recall, speed it up through some maneuvers in the California Assembly and Senate. And then the lieutenant governor set the recall for September 14th, thinking that this was going

to be right when schools were reopening. People in California would have a rosier picture of the way the state was going. The way that I think about how this recall has unfolded has become like that meme that we see everywhere, your summer plans and then the Delta variant. I mean, the Delta variant hits, case rates start to tick up again in California. The governor has to institute things like masking in schools and vaccine mandates for public employees and public school teachers. Folks that are critical to supporting the entire school ecosystem also submit a verification of vaccination and or submit to weekly testing. We've got some wildfires raging in the northern part of the state.

There is no doubt about it. We are now in the midst of the worst drought we have seen in modern-day California. Causing water restrictions across the state. And the enthusiasm for this election is really on the Republican side versus the Democrats, who many of the Democratic voters don't even know there is an election going on. So this turned really from an optimistic spring for Democrats and Governor Newsom into kind of a nail biter here as we are just a couple weeks out from the election. Libby, how much does a recall election in the most populous state in the union cost in 2021? The price tag of this recall is estimated at about $276 million.

What? Yeah, it's not cheap. I think we have to tell people now how the California recall election works. Right. So folks have two questions on their recall ballot. The first question is, shall Governor Gavin Newsom be recalled or removed from office? Now, Governor Newsom has to get 50% plus one to stay in office. And folks want to recall him the same. They have to get a majority vote on the first question to remove him from office. There's also a second question on the

ballot, which is who shall replace the governor if he is removed from office? And that's where things get pretty wild because there are dozens of people who are on the ballot as potential challengers to Newsom. And there's no runoff process here, Sean. So once somebody gets a plurality of vote on the second question, they only have to beat the other challengers on the ballot. They can be at about 20% of likely voters. That theoretically is enough to elect them governor. That really says a lot about the process that somebody with such a low plurality could lead the state. Give us an idea who's out there trying to replace Governor Gavin Newsom. 46 people are certified as candidates and are appearing on ballots. It ranges from people who have elected experience, like Kevin Faulkner, the former mayor of San Diego.

Every day is Groundhog Day in California. We've been electing the same failed leaders with the same failed ideas. Kevin Kiley, the assemblyman who is currently in the state legislature. I am only running in order to carry the torch of this movement that has been started, has been fueled, has been driven by ordinary Californians every step of the way. There are folks like Angeline, the Billboard celebrity and model from Los Angeles, kind of a cult fan favorite whose party platform is Everyone Must Party. I love you for voting for me.

Woo! Woo! And celebrities like Caitlyn Jenner. What's her campaign slogan? She says she will cancel cancel culture and wake up the woke. Cancel culture is out there. Can't wait. Who's the frontrunner in this race?

The frontrunner, based on recent polling, is a conservative radio host named Larry Elder. How old is he? How old is he? Sorry, it's a bad joke. Oh, oh my God. Welcome to Today Explained. The smug, anti-science way he locked down this state in a more severe way than all 50 states. He has got to go.

So Larry Elder is a conservative radio host from Los Angeles. Larry Elder here, the sage from South Central, the prince of Pico Union, the czar of common sense, the great Eldersky, Don Lorenzo. Welcome to the program. No victocrats allowed because we've got a country to save. So let's get our tea done. And has been a fixture in conservative media for a number of decades. He got into this race relatively late and there was a court case over whether he would be able to appear on the ballot, which he eventually won. So he's only had a few weeks, really, like five weeks of campaigning, but he vaulted to the front of the Republican pack, partly because of name ID. But I've been to a few of his rallies and people really respond to his communication style.

You hear a lot of the kinds of language that President Trump used. He calls out the media. And then we have this ridiculous narrative that the police are engaging in systemic racism. Again, for CNN and MSNBC, I know I speak quickly. I'll slow down for you. He calls himself a small L libertarian. So, for example, Larry Elder believes that the minimum wage should be zero. Why two people who are adults can't determine what the price of labor ought to be is beyond me. And why a third party feels it's his or her business to interfere with that is also beyond me. He's somebody who is pro-life, really talks a lot about masking mandates and vaccine mandates for teachers. If the mask mandates are still in effect, if I'm lucky enough to become governor,

they will be repealed. Big charter school advocate. So he holds a lot of conservative beliefs that are far to the right of the average California voter. It sounds like he's no Arnold Schwarzenegger, who famously was a socially liberal, fiscally conservative Republican who seemed to sort of fit alongside California in innumerable ways. This guy is a sort of Trumpy conservative with like a right wing radio show. I mean, that feels like an odd fit for one of the most liberal progressive states in the country. Sure. But Larry Elder has a couple of things going for him. One is that he only has to gain a plurality of support on the second question on the recall ballot. So right now, sitting at 20%

of the vote, he would be the next governor of California. And number two, I think that the name ID is working for him and the enthusiasm for Republicans to come out and take Gavin Newsom out. It's so much greater than the enthusiasm on the Democratic side. Even though Democrats greatly outnumber Republicans in the state, likely voters in polling are pretty evenly split. I mean, Gavin Newsom just barely clearing the threshold to stay in office on the most recent polls, and most of them are within the margin of error. So Larry Elder's got a lot going for him because of the structure and the way that this recall plays out. Are California Democrats like, you know, splitting and trying to run some strong

candidates against Larry Elder? Or is the strategy to just support Gavin Newsom through this recall election? That was the big question going into the candidate filing period was whether Democrats were going to run somebody that would be a backup candidate, a legitimate fallback for folks to vote for if Newsom was removed from office. Now, in 2003, the lieutenant governor, Cruz Bustamante, ran and put himself on the ballot. And that was highly controversial. That was seen as undermining Gray Davis and giving people a reason, even if they're Democratic, to vote to remove the governor so that they could vote for a Democrat to replace him. This time around, Democrats were committed to preventing any legitimate candidate to adding their name to the ballot. So you see the highest polling Democrat is Kevin Paffrath,

a YouTube personality and financial advisor who has no elected experience. But a lot of people are just looking on that second question, if they're Democratic voters, for anybody with a D next to their name that appears to be consolidating any amount of support. So there will be a lot of questions about whether it was a good move for Democrats to keep people with elected experience from getting on that second question. That was definitely a strategy, though, from the get go. If Larry Elder wins, it's going to be a pretty serious jump cut for the state of California. What are the state's majority Democrats worried about here? There is an all hands on deck voter turnout effort going on right now. You know, we see the governor stumping across the state. President Biden has said he will be coming. We don't know when yet, but he will still be supporting Newsom in person at some point in

California. And they're very worried because this polling, again, is showing that Newsom is in real jeopardy of being removed. The worry, of course, is that you would have just a complete rollback of a lot of Newsom's policies related to climate change, related to social services. Planned Parenthood is talking about the way that state government will be protecting women's right to choose and access to abortion services if the Supreme Court ends up knocking down Roe versus Wade. But, you know, there's a big caveat there, which is that the Democrats still control two thirds of super majority of the state legislature in Sacramento. And so much of what a governor elder or governor fill in the blank might be able to do will be curbed by the veto proof majority that

is in the state legislature. It sounds like there's a lot going on here. So while California is navigating wildfires and the Delta variant, there's this recall election in which a plurality of California voters could fundamentally shift at least some elements of the state's future. Voting's already begun. It wraps up on September 14th. Do you have any idea if there's going to be a huge surge of voting? Maybe if the president comes to town, he could drive some interest. But what are you guys expecting?

It's interesting. The last recall election of a governor in 2003 actually had higher turnout than the previous gubernatorial election. But a lot of people point to Arnold Schwarzenegger. The governator was on the ballot and drove interest and turnout. And Gray Davis at the time had much lower approval ratings than what Gavin Newsom has right now. Democrats are certainly worried about low turnout. The state has mailed ballots to every active registered voter, 22 million active registered voters in the state of California. And so those are in mailboxes now. A lot of folks are already turning

in their ballots. You see that Democrats are doing that early, but that's expected. Republicans are less likely to mail back their ballots. They like to come in person and hand them to an election official or put them in a secure ballot drop box. So you could see a red shift later as voting continues. But it's certainly something that Democratic strategists are watching closely, because if there is not a big surge in interest in this race in the final few weeks we could see a change in Sacramento and we could see Governor Newsom losing his office. Why does California have this system in the first place? That's in a minute on the program. To be continued... management software designed to help you save time and put money back in your pocket.

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Terms and conditions apply. Who could blame you for wondering why California has these recall elections to begin with? This is a mechanism that was put into the California Constitution over a century ago. It's a way of, if somebody is not performing well in office, to have a recourse to recall the person. Erwin Chemerinsky is the dean of Berkeley's law school, and he's been wondering why himself. There was a progressive movement in the early 20th century across much of the country. It was particularly salient in California. And as part of the progressive movement, the goal was to give the people more say over and control over government. The initiative process, for example, that lets people adopt laws by going to the polls

is part of the regressive movement. The referendum process that lets the people overturn laws adopted by the legislature was part of this. And making recalls relatively easy was part of this, too. And everyone knows about this instance with Governor Schwarzenegger and Gray Davis before him. But how many times has this tool been used? The only time in California history where sitting governor has been removed by recall was in 2003 when Gray Davis was recalled in order Schwarzenegger was chosen as the governor.

There have been many attempts, but they don't get on the ballot. What's unusual about these two is they made it on the ballot. Is this recall system unique to California? You don't hear about this happening in a lot of other states, but surely some states have something similar at least? About 20 other states have a mechanism for recall, but it's a mechanism that's rarely been used anywhere in the United States. So what makes California unique?

I think here, California may, as it often is, be the cutting edge. I think especially if this recall succeeds, we're going to see many more efforts at recall. Those who lose an election think that they have the opportunity to undo those results by recall. A couple lose an election think that they have the opportunity to undo those results by recall. A couple of years ago, we had a successful recall of a judge in California,

Aaron Persky. It was the first successful recall of a judge since the early 1930s. There's now recall efforts going on, say, in Los Angeles against the district attorney, George Gascon. I'm very troubled by this trend. And you actually wrote an opinion piece in the New York Times and made the case that the system in California isn't just troubling, but actually unconstitutional. Tell us about the argument you made. If Gavin Newsom loses and is recalled,

it's likely he'll still end up with about 48 or 49% of the votes. The most recent polls show very close on the question of whether he should be recalled. But if he's recalled, then the candidate who gets the most votes on the second question becomes governor. The candidate who's polling highest right now

has 18% of the vote. So there is a real chance that what could happen on September 14th is 48 or 49 percent of the voters want Gavin Newsom. 18 percent of the voters want the person who gets the most votes on the second question. And it's the latter who becomes governor. To have somebody with 18 percent become governor when there's another candidate provided 48 or 49 percent makes no sense and it's unconstitutional. It may make no sense, but this is in accordance with California state law, right?

And I'm sure a lot of Republicans in the state would argue these are the rules and we're playing by them. California state law here and in all areas must comply with the United States Constitution. There are so many instances where the Supreme Court and the federal courts have struck down aspects of state law when it comes to elections for violating the Constitution. I think to have a candidate favored by 18% chosen as governor when in the same election another candidate is favored by, 48 or 49 percent is what's unconstitutional. Has this ever been raised in front of the Supreme Court before? No. In 2003, Gray Davis filed a petition in the California Supreme Court on many different issues.

His petition was dismissed by the California Supreme Court, but without any written opinion. So we don't know why. We don't know if they rejected the arguments. We don't know if the case was rejected for lack of jurisdiction or for not being timely. Is there any Supreme Court of the United States jurisprudence on this issue of recall elections? Has any state's recall laws ever made it to the Supreme Court? There isn't Supreme Court jurisprudence about recall elections, but there's a great deal of Supreme Court jurisprudence about voting. And the Supreme Court has said for more than a half century, the most basic principles of the Constitution

is one person, one vote. Everyone should have an equal say in determining the outcome of an election. This election is about who's going to be the governor. If 18% favor a candidate who gets chosen over another is favored by 48, 49%, the former have within two times as much influence as the latter. That's what's unconstitutional. Is there something the state of California could do to maintain this system but make it more, what you would argue, I imagine, constitutional? There are many things that could be done. For example, we could say the only question for the voters

is whether to recall the governor. And if the governors are called, then the lieutenant governor becomes the governor, just as the lieutenant governor would if there was a vacancy for any other reason. Or another possibility would be allow the person who's been subject to a recall to have his or her name on the second vote. And if still more people want that person to be governor than anybody else, that's the governor of California. There's many ways of approaching this. But the current way, as I say, makes no sense and is unconstitutional. There seems to be something in the water in the country right now. There have been many attempts to boot some of the most powerful politicians out of office across the country,

from California to New York to even the White House. What have we learned from the story of the former president, from the former governor of New York now, and potentially the current governor of California, Gavin Newsom? I'm troubled by the comparison. For Governor Cuomo, he was pushed out of office because of documented instances of sexual harassment. There was an independent investigation that proved the misconduct. Donald Trump was impeached

because of misconduct. No one is alleging that Gavin Newsom engaged in misconduct, not only not of the kind of Governor Cuomo or President Trump, but of any kind whatsoever. I think there's a real difference between removing somebody from office because you don't like their policies and removing them from office for misconduct. Which leads me to the question, you know, how easy should it be to undo the will of the people in this country? Because obviously there are legitimate instances where you might want to. And then, as I imagine you would argue, there are other instances where there's not enough grounds.

I think it should always be difficult to remove an incumbent officeholder. The voters chose the person. If the voters don't want the person, they can vote the individual out of office. We're going to have a gubernatorial election in California in November 2022. If people don't want Gavin Newsom, they can vote him out then. I think when you do recall elections too easy, it then makes it possible for the losers try to get a second bite of the apple. Recall elections have harmful effects. They take the office holders'

attention away from the duties of the position. They're expensive. I think recalls should only occur when they meet a much higher threshold of necessity than what occurs in California. That was Professor Erwin Chemerinsky of the University of California, Berkeley School of Law. Today's show was produced by Amina Alsadi and Hadi Mawagdi. I'm Sean Ramos for them. It's Today Explained. Thank you.