October 08, 2003

The law governing a recall of Gov.-Elect Schwarzenegger

Already there is talk of a recall of Gov-elect Schwarzenegger. I have received a number of questions about this possibility over the last few days. It seems like an absurd political strategy to me, but there seems no impediment to such an action in California law. While Elections Code section 11007(a) prevents commencing recall proceedings against local officials until they have been in office for at least 90 days, Article II of the California Constitution provides no such limit against state officials.

The other question I have been asked is whether the signature requirement would be 12% of the 2002 gubernatorial turnout or yesterday's turnout. Article II, Section 14 (b) provides in pertinent part that "A petition to recall a statewide officer must be signed by electors equal in number to 12 percent of the last vote for the office..." Arguably, the last vote for the office was yesterday, though there may be caselaw to the contrary that I have not researched.

UPDATE: Richard Winger of Ballot Access News sends along the following via e-mail regarding my last point: "Last week, Bill Wood, counsel to the Secretary of State, with a great deal of confidence in his voice, told me on the phone that Shelley had decided that this is not a 'gubernatorial election' for the purpose of statewide initiatives and new party qualification. But it does apply as a base for any future gubernatorial recall."

Wood may have had a great deal of confidence, but without any analysis, I wonder if the distinction would hold up to scrutiny.

Posted by Rick Hasen at October 8, 2003 07:50 AM