Voters in 20 states have the option of tossing their governor out of office before the end of his or her term.

Still, since 1921, gubernatorial recalls have made it to the ballot in only three states—North Dakota, California, and Wisconsin. However, recalling local officials and state legislators has been more common.

The concept of recalling politicians commonly is thought of as part of the progressive movement of the early 20th century. But the debate over recall goes back much further, and states do it differently.

“Some have what’s called a political recall law, like California, like Wisconsin, like Arizona, where you could do it for whatever reason you want to,” Joshua Spivak, an authority on recall elections, says. “Other states have a very severe limit and those states … rarely have recalls or have many fewer recalls, and then have almost none on the state level.”

Spivak, senior fellow at the Hugh L. Carey Institute for Government Reform at Wagner College in New York, joins “The Daily Signal Podcast” to discuss the history of recall elections just days before California holds another one. Spivak is the author of a new book on the topic, Recall Elections: From Alexander Hamilton to Gavin Newsom.”

We also cover these stories:

  • America is on track to default on the national debt if Congress doesn’t raise the debt ceiling by mid-October, Treasury Secretary Janet Yellen warns. 
  • Top Republicans on the House Homeland Security Committee express concern over the fate of Americans and Afghan allies stranded in Afghanistan.
  • Workers remove a large statue of Confederate Gen. Robert E. Lee in Richmond, Virginia, capital of the Confederacy.

Listen to the podcast below or read the lightly edited transcript.

Fred Lucas: Our guest today is Joshua Spivak. He is a senior fellow at the Hugh L. Carey Institute for Government Reform at Wagner College and he is the author of a great new book, “Recall Elections: From Alexander Hamilton to Gavin Newsom.” Thanks for joining us today.

Joshua Spivak: Thanks for having me on.

Lucas: One of the things I thought was really interesting about the book is that a recall election was an issue in the 1912 presidential election, particularly the race between President Howard Taft and [former President] Teddy Roosevelt. President Taft was very offended by the notion of recall elections, whereas Teddy Roosevelt was a big champion. Could you talk about that a little bit?

Spivak: It is really interesting. That’s what I would think of as the most exciting election in U.S. history. You have three presidents—the past, the present, and the future president—all facing off against each other and you’ve had a lot of other factors, including the first real presidential primary taking place that year.

It was never clear why there’s this big divide between Taft and Roosevelt. Taft was Roosevelt’s hand-chosen successor. And many of the Republicans, who in the end eventually supported Taft, were Roosevelt supporters and Roosevelt friends. And this issue is one of the clear examples of debate and the divide. 

So Taft vetoed the Arizona and New Mexico constitution because they contained a provision allowing for the recall of judges. The recall was itself a controversial issue. The recall of judges was particularly controversial and Roosevelt was very offended by Taft’s veto. And he proposed an idea that was not only recall of judges but also something called the recall of judicial decisions.

Traditional decisions at that time were very hotly charged—somewhat like today, but perhaps even more so, especially the Supreme Court decision tossing out an income tax law that was eventually overturned by the 16th Amendment. And that issue led to this idea that the voters would be able to collect enough signatures and overturn a judicial decision. This would be on the state level, not on the federal level. 

So Taft and a lot of Republicans felt this was really a step or 100 steps too far. And this helped precipitate a break.

Roosevelt eventually, after losing at the convention—partially due to the primary losses, not really primary losses, but losses in the South where there weren’t any Republicans—he broke off and formed the Progressive Party, that’s better known as the Bull Moose Party. But the recall issue turned out to be a major precipitating factor in that break.

Lucas: And as far as judiciary recalls, how many states have that today?

Spivak: Most states do not. Most states do not have a recall on the state level. None have anything like [recall of] judicial decision. One state adopted it, Colorado, and it was tossed out by the Supreme Court and basically died and nobody’s ever talked about it since. 

It’s a really odd lacuna in American history that this was a big issue, but judges rarely face recalls. There was one in California in 2018 and that judge was removed. And the previous one that I’ve seen was in 1982 and in 1978 in Wisconsin, both of them Wisconsin. Usually they do engender threats of recall. Some of the O.J. Simpson decisions ended up with threats of recalls. But in general, judges are protected.

Lucas: And you write in the book that when recall provisions were being debated within state legislatures and so forth, opponents of recall, that [judicial recall] is what they focused on more than anything else essentially, because that was something that probably scared a lot of people and undermined the separation of powers.

Spivak: Yes, exactly. Not only the separation of powers, but they felt like there should be some conservatism in the process. Then once you get the judges involved in this, well, trouble could happen and maybe judges are facing recalls for very basic provisions, very basic deals that they’ve approved from prosecutors and defendants and they just get the blame.

So I think that is part of the reason that judges have generally avoided it. The other reason is there’s less value in a judicial recall because it’s not as partisan. The position, on the Supreme Court level, sure, but for most of the judges there are less elections and it has become less of an issue. Perhaps that will change. That certainly could change, especially as redistricting and other issues become more of a judicial area of concern.

Lucas: I believe something like 20 states allow for the recall of governors, but so far we’ve only seen this make it to the ballot in three states, California, Wisconsin, North Dakota. Do you think on some level the scarcity of these recall elections might speak in favor of it? Because one of the arguments you sometimes hear against it is, “Oh, it could get out of control, it could set this bad precedent.”

Spivak: Yes. I think that’s true. Actually, there was another recall that would have gotten on the ballot in 1988 in Arizona, but the governor was impeached on the same day that they were scheduling the recall, not that day that it was held. So it is very scarce.

And part of this is it’s tough to do. It’s tough to get the signatures. It’s tough to get people motivated that much to get that many signatures.

And in some ways, we’ve seen governors where perhaps the threat of the recall could push people to resign. Without the threat of a recall, maybe they’ve done something wrong, maybe there’s good reason for them to be kicked out. But just having that, what Hiram Johnson, the guy who pushed for the recall, and others called “the gun behind the door,” they help lubricate the process.

Lucas: You mentioned in the book that in 2015, I believe in Oregon, there was [a recall effort]. It pushed the governor there to resign.

Spivak: John Kitzhaber. Exactly. He had a lot of different issues. Now, part of what helped get that out is that his successor was going to be the same party. I think that just the natural political issue of a recall makes that a challenge, but having somebody on the same party who will take over, “OK, well, maybe this guy will be removed with the recall.” And in Oregon, they don’t even have an impeachment process. So the recall was absolutely necessary to get him out if they wanted him out.

Lucas: As far as the first case of a governor being recalled, that was in North Dakota, could you talk about that and some of the circumstances behind it?

Spivak: That’s a very odd recall to our mind because it’s so long ago and it involved two Republicans effectively facing off against each other.

Perhaps not surprisingly, North Dakota’s Democratic Party wasn’t that strong, but a number of Republicans in the 1918 election, a group came in and—the Nonpartisan League, that was the name of their group—they came into office and they put in some provisions that included banking reform. It felt like socialism to the opposition. It’s not so simple to think of it today.

And that guy, Lynn Frazier, was the governor, and the attorney general and the commissioner of agriculture all were reelected. They won in 1920, but there’s a downturn in 1921, and a new group comes in and they put recalls on the ballot against all three of them. And the actual result is pretty interesting because they won. The governor, Lynn Frazier, won in 1920, 51%-49%. And then in 1921, he loses the recall 51%-49%.

But there is a footnote to this. Frazier—18 months later, or less than 18 months later—wins election to the U.S. Senate for the first of three terms. So a recall is certainly not the end of the road if you don’t want it to be.

Lucas: Let’s skip forward to Gray Davis in California. For the most part, the recall ended his political career. Could you talk about that and how maybe the California recall that saw Arnold Schwarzenegger become governor differed from what we saw with Scott Walker in Wisconsin in 2012? That was the third time they won the ballot, but Walker was actually the first governor to survive a recall.

Spivak: Right. Exactly. So, the Gray Davis one was quite interesting. Part of that was due to the blackouts that happened a year before, or a couple of years before, in California. Part of it was also that he got involved in the Republican race or the Republican primary where … he helped support a more conservative candidate against the [Los Angeles] mayor, and then Davis went on to win by 5%.

But he was already below the threshold that he would have needed to succeed to win a recall. He got 47% of the vote. You needed 50% to win your recall race. So, that’s not a good sign for Davis. So, the combination helped push it along. Davis was not particularly popular at that moment and the recall became somewhat of a circus.

And there were a number of different candidates, once they realized that you did not have to put much into getting on the ballot for the replacement race. You needed at the time … $3,600 or so and 79 signatures, I think.

So it was pretty easy to get on the ballot. So a lot of people did, and Arnold Schwarzenegger obviously was the most famous. But there were plenty of others, including [actor] Gary Coleman, a porn star, a billboard model, the owner of Hustler, and all different types of figures. And so this really worked against Davis. 

Additionally, there seemed to be a less partisan fervor on it. While partisanship was very important, Davis ended up getting 70% of the Democratic vote and 88% of the Republican vote went against him, it just felt less of a partisan issue then. And especially with somebody like Arnold Schwarzenegger, who did not feel as partisan than in other recalls we’ve seen. 

The Walker one felt extremely partisan and very much a part of the current political environment. And I think that the result was interesting in that Walker finished almost the same result as in his election in 2010. He got 52 point-something in the election in 2010 and 53 in the recall.

Lucas: States are very different on this. I mean, California, Wisconsin, and North Dakota, those three states, you can pretty much bring up a recall for almost any reason, often policy-based, whereas there are some states that would require some sort of scandal or malfeasance or other things, right?

Spivak: Yes, there’s this divide, a big divide between how states treat recalls. Some have what’s called a political recall law, like California, like Wisconsin, like Arizona, where you could do it for whatever reason you want to.

Other states have a very severe limit and those states rarely have recalls or have many fewer recalls and have almost none on the state level. And there you have to have a showing of cause, a statutorily delineated cause, and very frequently it’s malfeasance or crime, and it’s harder to get on the ballot and it’s going to involve a lawsuit and it’s going to involve a lot of different challenges. So while people try it, they frequently don’t go anywhere, and they just give it up pretty early on.

So, that divide. And 11 of the states that have a recall law per the state level have a political recall law, eight or nine.

Virginia has a very different law, [with] the malfeasance standard. The 20th state, as I said, is Virginia. They actually have a recall trial. It’s not clear that it’s allowed for governor. It may not be. It probably isn’t. But you have to include them in there. And what they would have is you get enough signatures and then there’s a trial and a judge decides whether the officials should stay or go.

Lucas: Oh, so it’s not an election?

Spivak: It’s very odd. I don’t know anywhere else in the world that has that.

Lucas: There have been pushes for federal recalls, but that’s probably not something that a state could constitutionally do to a federal official, right?

Spivak: Right. The federal recall law goes all the way back. It was in the Articles of Confederation. Some states had it for Articles of Confederation members who were appointed by the state and it was whether the legislatures could remove that official who was their delegate to the Articles of Confederation.

Then in 1787, when we had the Constitutional Convention, the first draft was, or what we could think of as the first draft of the Constitution, it’s called the Virginia Plan or the Randolph Plan, though it was really probably written by Madison. And that had a provision for recall of what would become the House of Representatives. But it was tossed out of that law without comment pretty early on in the convention.

Afterward there was a very intense debate over whether U.S. senators should face a recall. And again, at that time, senators were appointed by the legislature, so it wasn’t clear could the legislature say after a year, “No, you’ve got to come back.”

Alexander Hamilton was one of the big opponents of this. He had intense debates in the New York Constitutional Convention opposing this provision and in the end it did not succeed. It was left out of any amendments. It was left out of the Constitution.

There were other provisions. People would use something called instruction where they would claim this right where the legislature could send a note saying, “You must vote this way and you should resign, if you have any honor, if you do not vote this way,” to a U.S. senator and sometimes people would resign. 

Eventually that idea died out, but it never got through to the federal level. There have been lawsuits, there have been attempts, and they’ve all failed. The U.S. Supreme Court has not ruled on it, but if you look at the term limits decision, U.S. Term Limits v. Thornton in 1995, you would see both the decision and the dissent, the dissent written by Clarence Thomas, really suggest that they would not be at all amenable to recalls for U.S. senators.

Lucas: You noted that largely Republicans have supported this, it seems, in more recent years; more conservative Republicans, in most cases, probably. But recall itself really came about and became popular through the progressive movement. That seems interesting in itself. I mean, it’s something that was pushed by progressives in the early 20th century and more recently has become something that the right has used.

Spivak: Yes. Though it should be pointed out that a lot of those progressives in the early 20th century, and probably a majority, were actually Republican. Republicans had that big divide so impacted that the people who pushed the recall in California was the Lincoln-Roosevelt League, those were the big heroes of the Republicans at the time and still today.

Lucas: And a Republican governor.

Spivak: So it was a progressive idea but the Republicans were—as always, everybody is [in] a very different party than they were back then. It is, to some degree, the Republicans who were pushing it, and part of that I think is what’s happened out West.

So recalls are really popular the further west you go. The Eastern Seaboard, a lot of them do not have recalls. New York doesn’t have a recall law. Pennsylvania doesn’t have a recall law. South Carolina doesn’t have one. But every state west of the Mississippi, except for Utah, which actually rejected it barely in 1976, has some sort of recall law on the books. Some of them are just on the local level, but they all have that.

And I think part of what’s happened is that Democrats have done better in the West, which, the recall is an obvious way to fight that and a way to push back at that. However, there’s still plenty of uses for Democrats using it against Republicans, as we saw in Wisconsin, primarily, but also in Arizona and Michigan in 2011.

Lucas: I think that’s everything that we’re looking at. Is there anything else that you’d like to share with our listeners?

Spivak: So, the recall, it’s a very interesting provision and it’s sort of a statement of, what type of elected government do you want? And it goes back really to Edmund Burke. Should your official be a trustee, somebody you’re appointing or electing because of their greater knowledge, the greater wisdom? And they may oppose you, but you want them in office because they’re better at that. Or should that person be a representative, a delegate, an advocate for your position? 

You don’t want them to vote just because of what they think they know about best. You want them to be there as the best person who could push the positions you believe in.

And the recall is really a thumb on the scale for the second model. And I think that’s, in many ways, where we’re going, where we’ve always been going as a society, where we want people who are following our lead, not leading us in government. So, that’s really, in many ways, the philosophical underpinning to the recall.

Lucas: All right. Well, thanks for joining us for this. It’s been a great talk and I would suggest everybody check out the book “Recall Elections: From Alexander Hamilton to Gavin Newsom.”

Spivak: Thanks for having me on.

Lucas: Thank you.
