Op-ed: Proposition O is a very useful fix to the law

By Joshua Spivak

Joshua Spivak is a senior fellow at the Hugh L. Carey Institute for Government Reform at Wagner College. He blogs at www.recallelections.blogspot.com/

Among the many ballot propositions up for a vote on Election Day, Proposition O — which makes some seemingly minor fixes to the city’s recall law – is very low down on the public discussion list. But it is actually a very useful fix to the law, one that takes the step of heading off some future lawsuits whenever a recall comes back into play.

This change may not seem like an obvious repair that needs to be made. While recalls seem to be expanded nationwide, with at least 426 recalls or resignations taking place between 2011-2013, Berkeley city’s residents have not been active participants.

This fits into the city’s general pattern since it adopt the law in 1907. According to the 1930 standard on recalls, The Recall of Public Officers, the only recalls that took place in the first two decades were three school board members who survived recalls in 1912 and another one in 1925.

According to local historian David Mundstock, after a failed recall attempt in 1964 against school board members, the city significantly tightened the law. Now Berkeley has one of the state’s strictest recall laws. As a result, Berkeley hasn’t had a recall since Councilman D’Army Bailey was kicked out of office in 1973. Proposition O doesn’t make the law more lenient. Berkeley will still have a strict law, as determined by the number of signatures needed and the time petitioners have to gather those signatures.

In order to qualify a recall for the ballot, Berkeley requires petitioners to collect the signatures of 25% of registered voters in the affected district (or in the whole city if a city-wide election) in 90 days.

Compare that to other cities in the state. The signature requirements for citywide office is 15 percent for Los Angeles and San Diego, 12 percent; San Jose requires 12 percent, and it’s 10 percent for San Francisco, Oakland and the rest of the top 10. They also allow more days to collect, as the cities (with the notable exception of San Diego), give between 120-160 days to gather those signatures.

Additionally, California has a law that determines the signature requirement for non-charter cities – for cities like Berkeley, with between 50,000 and 100,000 registered voters, the signature total is 15% in 160 days. Berkeley throws up a much higher hurdle than the rest of the state.

What this change will instead do is clean up the law. We got to see a close-up example of the dangers of a poorly drafted law last year in San Diego after Mayor Bob Filner was caught up in a massive sexual harassment scandal. It was quickly discovered that San Diego’s recall law was a complete disaster, one that provided Filner with a potential multiple avenues for litigation. In the end, Filner resigned due to the overwhelming public pressure. San Diego is still attempting to clean up its recall law.

Berkeley’s current pre-Proposition O law includes several of the same pitfalls as in San Diego. Berkeley currently requires voters to first cast a vote on the question of whether to remove the elected official if they want to cast a ballot on the replacement. This provision of the law is actual a violation of California law, as decided by the California Supreme Court during the Gray Davis recall. However, the decision in that case did not wipe out all the locals laws – it only dealt with state law. Unless Proposition O is approved, there needs to be a similar case to change Berkeley law.

The city also has a very unclear provision that requires signatures to be handed in in 75 days for verification by the County Clerk, and then, if the petitioners don’t have enough signatures, they are allowed 15 more days. Though it was used in the Bailey recall in 1973, this is a fairly unusual provision that rarely appears in other cities throughout the country. It seems to add costs for the City Clerk. Proposition O gets rid of this provision and instead gives petitioners a full 90 days to collect signatures.

These may seem like small points, but as we’ve seen in other jurisdictions throughout the country, once a recall comes to town all hell can and will break loose. Elected officials will use any and all legal arguments to delay and defeat recalls before they get to the ballot. In some jurisdictions in Texas and Alaska, elected officials have succeeded in killing, the recall apparently by simply refusing to schedule one on the ballot. California law prevents this particular tactic, but delay through litigation is still the rule whenever a recall qualifies. These electoral lawsuits forces recall proponents to spend time and money that they can use to campaign to simply have the law work. It saps the momentum from the recall and frequently results in petitioners just giving up the effort entirely.

For the city itself, the recall litigation cost money and employee work hours. Proposition O seems to take these facts into account by removing language in the law that guarantees these easy lawsuits as well as cleaning up other relevant provisions, such as the timing of the recall and how to replace an official if they resign or die.

Proposition O doesn’t handle all the possible problems. As we saw in Oakland, it is not clear how a recall would operate in a city with ranked choice voting. Oakland’s City Attorney claimed that ranked choice would be used in the proposal recall, but there is certainly good cause to think that her logic might not hold up in court. Berkeley has a tighter law, but that doesn’t mean it won’t face a lawsuit. Yet these theoretical questions can wait for a later date. Proposition O seems clear out the most troublesome problems.

The recall is a controversial electoral device that by its very nature appears to engender hard feelings and conflicts among voters. However, a sloppy law such as the one Berkeley currently has causes additional problems and costs the city and recall proponents money. The City Council did a good job trying to head off these issues with a smart fix. If Proposition O passes, Berkeley will be thankful for that when the recall comes back.

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