Democracy in the Wake of the California Recall

Abstract

The recall of Governor Gray Davis and simultaneous election of Arnold Schwarzenegger provide a unique window on aspects of elections and democratic institutions that are not limited to statewide recall elections. Although one must be wary of drawing general conclusions about the political process from an unusual event such as the statewide recall, this election can serve as a way to think about broader issues relevant not only to future recalls but also to all candidate and issue elections in California and throughout the nation. In this article, I discuss insights that the recent recall provides with respect to four familiar areas of law and politics. First, the recall demonstrated the significant and sometimes troubling role that money plays in modern campaigns, as well as the difficulty of constructing effective and comprehensive campaign finance laws. Second, the unusual structure of the recall election, where an election for Davis's successor was on the same ballot as the recall question, helps to assess the role of political parties in elections. It suggests that independent and minor party candidates can be part of an election without causing widespread voter confusion. Third, the over twenty lawsuits filed before the election was held - with one threatening to delay the election for months until an en banc panel of the Ninth Circuit stepped in - suggest that litigation is being used more aggressively as political strategy in the wake of the Supreme Court's intervention into the 2000 presidential election. Unless courts take a less activist role in cases affecting elections, this disturbing trend is likely to continue. Finally, I conclude with a discussion of the interaction between direct democracy and representative democracy. In states with a hybrid system like California, these two forms of democracy influence each other - a reality that we witnessed in the days before the recall election and that we are likely to continue to see as Governor Schwarzenegger threatens to use initiatives to pressure a recalcitrant legislature to do his bidding.