The California Gubernatorial Recall Election - Another United States Supreme Court Generated Disaster in Democracy

    In the  March 26, 1996 primary election, voters in California adopted Proposition 198 by a vote of 3,340,642 (59.5%) "Yes" to 2,273,064 (40.4%) "No" that called for an open primary in California.  The initiative allowed for any voter to vote in any primary.

   The California Democratic Party filed suit against Bill Jones, the secretary of State.  While the ninth circuit court upheld the validity of the Proposition, its ruling was overturned by the United States Supreme Court on June 26, 2000.  The Supreme Court held that the first amendment gives political parties a "right not to associate" in publicly funded primary elections.

   In other words, the Supreme Court limited states' rights to open their primary elections to all eligible voters.  Even though elections are paid for by the public, the supreme court gave the parties the association rights of private organizations.  Is it any wonder, then, that this same court, later that year, ruled that there is no constitutional right to vote for president and that votes do not have to be counted?

    What makes the Supreme Court decision especially outrageous is that Proposition 198 was passed at the March 26, 1996 primary, not a general, election.  The Supreme Court ruled that parties have a right not to associate, even if the members would like to associate.  The numbers tell the whole story.

    The turnout in the primary was 6,081,777 voters.  There were 2,822,460 Democrats; 2,660,943 Republicans; 58,597 American Independent; 29,690 Green; 21,746 Libertarian; 9,847 Natural Law; 10,426 Peace & Freedom; 40,193 Reform; and 427,875 No Preference.

    The open primary question passed 3,340,642 to 2,273,064; so 400,000 voters skipped the question entirely.  If it is assumed that the 598,374 minor party and unaffiliated voters all cast "Yes" ballots, and those "Yes" ballots are subtracted from the "Yes" total, the open primary proposal still would have passed 2,742,268 "Yes" to 2,273,064 "No", a margin of almost half a million votes.

    In other words, a majority of the Republicans and Democrats voted to open their primaries to all voters regardless of party affiliation, but the Supreme Court ruled that that was unconstitutional because the parties have a right "not to associate" even if the members of the party want to associate.  The Supreme Court gave the parties a first amendment right of association independent and superior to the first amendment rights of its membership.  And parties are not even mentioned in the Constitution, even though the people who wrote the constitution knew all too well of their existence in politics and government in Europe. 

  A Race Between the Cheaters and the Quitters

   If Proposition 198, which passed by  almost 20%, had been allowed to stand, Gray Davis would have lost the 2002 gubernatorial election in an orderly and democratic manner to Richard Riordan, the former Mayor of Los Angeles .  By closing the Republican (and Democratic) primaries to non-party members, the Supreme Court's decision prevented the voters of California from being able to choose the best candidate for governor. Riordan lost the Republican primary to a rich, right-wing, neophyte, Bill Simon, who subsequently lost to Davis by a small margin.

   Ironically, the California recall election is the open primary that voters approved by a wide margin in 1996 with proposition 198.  All the candidates, except Davis, of both parties will appear on a single ballot and any registered voter may vote for one, only one.

        The problem is that the recall election is no longer about Gray Davis, it is about changing the rules in the middle of the game and introducing chaos into the political process.  The Republican Party has become the party of cheats.  Starting with the attempt to impeach Bill Clinton in 1998, then on to helping George Bush steal the 2000 presidential election by having congressional staffers go down to Palm Beach County stand in a mob outside the board of elections screaming, "Let us in" in order to disrupt the vote count, then on to changing the date of the New Jersey Gubernatorial Primary in 2001 so that the candidate could be changed after the deadline for withdrawal had passed, then to changing the congressional district lines in Texas in the middle of the decade and to the California recall election, the Republican Party is sowing chaos into the electoral process by changing the rules at will. 

   But instead of standing up to the Republican gangsterism, the Democratic Party has become the party of quitters.  Gore threw in the towel rather than fight for his victory all the way through the electoral college and into congress, Bob Torricelli, the Senator from New Jersey, took the cheating route when he dropped out of the 2002 Senate race after the deadline for dropping out had passed, and now some leading democrats are urging Davis to step aside.  But there is no way any Democrat but Davis is going to retain the governorship for the Democrats.  If Davis loses, a Republican will win (and then have to govern with a Democratic legislature.  Good luck!)

   Although the Democrats richly deserve the dilemma in which they find themselves for opposing Proposition 198, still, the voters would be doing themselves a disservice by ousting Davis and with him the concept of fixed terms in American politics.  If Davis is removed from office, from now on, elections will be perpetual in California.  If anyone with a million dollars (and which party has the most people who can come up with $1 million at will) can mount a campaign to have a recall election whenever the elected official becomes unpopular, then it will become increasingly difficult for government to make any changes that might generate opposition.  Fixed terms are a vehicle for stability in government, it gives office holders a period of time in which to act.  The fixed terms enable officials to make unpopular decisions early enough in their term so that the benefits can be seen before they run for re-election.  If elected officials have no grace period or benefit of the doubt for a fixed period of time, then no elected official will ever do anything unpopular, no matter how beneficial it might be to the long term interests of the voters.

    In fact, one of the reasons California is facing a huge budget gap is because of voter hostility to property taxes which resulted in Proposition 13 back in 1978.  By limiting tax increases, Proposition 13 resulted in most of California's revenues coming from income and sales taxes.  The economic downturn combined with the dotcom collapse has slashed California's revenues from income taxes from $46 billion in 2000 to $33 billion this year.  Proposition 13 had another effect, it raised housing prices in California much higher than in the rest of the nation.  In New Jersey or New York, for example, a house valued at $500,000 pays $10,000 or $12,000 or more a year in property taxes.  In California, a $500,000 house pays $1,000, almost the same as in 1978.  In other words, in California, housing costs are only principal and interest, while in the rest of the nation real estate taxes are included in the monthly payment.  So, the same amount of income will support a far more expensive house in California than in New York or New Jersey, because real estate taxes are virtually non-existent.  The high house prices make it hard for young families to live in California, which is why the state lost population in the late 1990's.

    All things considered, Gray Davis will probably survive the recall attempt because, although he deserves to lose and would have last year against a decent candidate, at this point the cure is worse than the disease.  Gray Davis should survive the recall, and the second question on the ballot will be a beauty contest, handicapping candidates for the race to succeed Davis.

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Contact: Joshua Leinsdorf