Until former Assembly Speaker John A. Pérez called it off Friday, we were in the midst of what was likely to become the biggest election recount in California history. If anything good comes of this political tempest, it is to remind us how badly we need to reform our recount laws.
The race to be the next state controller was excruciatingly tight. Fresno Mayor Ashley Swearengin, a Republican, is now set to face off against Board of Equalization member Betty Yee. Four hundred eighty-one votes separated Pérez and Yee, both Democrats. After the recount, which cost approximately $30,000, Perez picked up 10 votes.
The way we do recounts in California is, well, a tad unruly. Welcome to the Golden State, where a candidate or other registered voter must request and pay for a recount. And they can choose which precincts will be subject to the recount.
Why is this a problem? First, the recount rules mean you get as much democracy as you can buy. Many of us know that money plays an outsized role in political campaigns. But, at least everyone still has the right to an equally weighted vote, or so we thought. This allowed many of us to sleep at night. Well, wake up folks. It turns out that money can play a troubling role in the actual counting of votes as well.
There are no recounts in California unless the candidate or another registered voter can at least initially foot the bill for the cost of the recount. This means that candidates without money at the end of a campaign, or without access to friends with money, will not be able to avail themselves of a recount. So how many votes will get another look? As many as someone can pay for. Yes, this troubles me.
The typical case in these atypical cases is for a candidate to call for a recount and use her own funds or campaign funds. This is potentially just an upfront cost that can be recouped. If the candidate prevails she gets her money back.
Second, the recount rules are good news for some politically savvy candidates but potentially bad news for voters because not all votes are recounted. The person asking for the recount can cherry pick which precincts will be subject to a recount. They can and will game the system to only recount those precincts in which the candidate has the greatest chance of gaining votes. Simply put, money dictates which votes get another look. What about those areas in which votes are not recounted? Who knows. What if those votes could sway the election? Doesn’t matter.
Other states do this better. In 20 states and the District of Columbia, when candidates are separated a small margin there is an automatic recount and the taxpayers foot the bill.
Paying for a statewide recount would constitute a very, very small percentage of the state’s budget. A statewide recount would cost about $3 million. To put that in perspective, Gov. Jerry Brown recently signed a $156 billion budget for the next fiscal year.
It is also important to remember that recounts are also very, very rare. To ensure that recounts remain rare, and hence save the taxpayers money, the state could implement a rule saying that only contests within a certain margin will be eligible for a recount. States that require automatic recounts do so only if the margin between two candidates is a statistical tie or within approximately 0.1 percent to 1 percent of the votes cast in that election.
Automatic recounts of the entire state help to ensure that the candidate with the most votes, not the most money, is successful. A procedure that provides for the counting of only certain votes deprives the public of this assurance.
Money already helps to determine who can run for office, what is discussed in campaigns, whose interests candidates and officeholders will be most attuned to, and perhaps, often, who wins. We should not allow money to determine who can ask for a recount and which votes get a second look.
California should consider joining the other states that require automatic recounts in particularly tight races. We could deliberate a system in which we maintain a portion of our current scheme of discretionary recounts, and allow candidates or registered voters to request a recount of their own if the vote is within a certain margin, but outside of the margin that triggers an automatic recount. This could be a particularly useful option when the results in one area are considerably different from historical results in that area.
Recounts are rare. Let us make sure they are also fair.
Jessica A. Levinson is an associate clinical professor at Loyola Law School, Los Angeles, where she teaches election law, money, politics and the Supreme Court, and the campaign finance seminar. Follow her on Twitter @LevinsonJessica. She blogs at PoLawTics.lls.edu.