The Constitutional Rights at Stake in the San Francisco Recalls
In one part of the former Tsarist Russian Empire, the constitutional right of recall proves its worth
As we watch Vladimir Putin’s unprovoked and illegal invasion of Ukraine, we a cannot help but admire the incredible bravery of the Ukrainians as they resist to protect their own democracy. Ukrainians have refused to give up their territorial sovereignty or their democracy without a fight. They are losing lives and now facing incredible destruction at the hands of Russian soldiers who are attacking civilian targets. But they refuse to surrender, and Americans are united in our support for them.
While the Russians have taken massive economic losses and military losses, Russia continues its invasion. Vladimir Putin is apparently driven by a desire to rebuild the old Tsarist Empire. On paper, Russia is technically a democracy. They have elections but Putin governs in a way that makes challenging him nearly impossible. He has jailed his most credible opponents, shut down free media coverage, and uses the power of the state to crush any prominent critics. It doesn’t matter that many Russians did not want this war or that it is inflicting massive casualties on his people, Putin can continue this war because of his unchecked power.
Watching the carnage, it is a reminder of the need to be vigilant of encroachments upon democratic rights and democratic norms. And a reminder of the importance of defending those rights and norms. The recent recall election of three San Francisco School Board members and the current recall election of the San Francisco District Attorney demonstrate this point.
Few people are aware, but the Tsarist Russian Empire once extended into northern California, where Russians established a colony, Fort Ross, in what is now present-day Sonoma County (a northern suburb of San Francisco).1 The Russians even maintained a cemetery in present day San Francisco (giving the neighborhood of Russian Hill its current name).2
On February 15, 2022, in former Tsarist Russian land, San Franciscans exercised a right that Russians could only dream of having. They voted to remove Alison Collins, Gabriela Lopez, and Faauuga Moliga from the San Francisco School Board in a recall election.
The elections weren’t close.
76.28% of San Franciscans voted to remove Alison Collins, 72.06% voted to remove Lopez, and 68.86% voted to remove Faauuga Moliga.3 Notwithstanding that it was a special election, more votes were cast to remove the three school board members than were cast to elect them to office.4 While the results surprised many pundits, there were well-documented reasons that led to it.5
Among other things, former School Board President Alison Collins made racist and heteronormative statements, refused to apologize for them, and then sued the School District for 87 million dollars when the Board removed her as Vice President. The School Board, for its part, engaged in a wide variety of bizarre and generally poor decision making.
Among more notable examples, the Board attempted to cancel Abraham Lincoln, removed a mural by a famous artist, refused to appoint a gay parent to a volunteer advisory board on account of his race and gender, cancelled merit based admission at an elite high school because too many Asian American students were being admitted, attempted to rename schools based upon historically inaccurate information, and refused to reopen the schools after the initial COVID19 pandemic shutdown.
The members of the School Board might not be the only local elected officials who San Franciscans decide to remove from office either. On June 7, San Franciscans will vote whether to remove their current District Attorney from office, a result that is possible given current polling.6
Many outsiders, especially those who work in journalism, dislike recall elections. They find them confusing and attempt to question their democratic legitimacy. One CNN commentator even claimed that the San Francisco School Board Recall “sent a dangerous message”.7 However, these critics misunderstand the purpose of a recall election and the fundamental role it plays in our democracy.8
Having recall elections is not merely some wacky legislative choice. To the contrary, the right of Californians to recall our elected officials from office is guaranteed under the California Constitution.9 And Californians may exercise their constitutional right to recall any of their state, county, regional, or city elected officials.10 The constitutional right of recall is broad one; voters do not need to have any formal reason whatsoever to recall an elected official.11 If enough valid signatures are gathered in the jurisdiction, the recall election will be held.
As provided by the California Constitution, “All political power is inherent in the people.”12 The right of the recall is not a power granted to us by the legislature but one that we have reserved to ourselves.13 The constitutional right of the recall was “[d]rafted in light of the theory that all power of government ultimately resides in the people, the amendment speaks of the initiative and referendum, not as a right granted to the people, but as a power reserved by them.”14
And the California courts zealously guard these rights.15 As explained by Supreme Court Justice Joyce Kennard, the right of the Californians to submit ballot measures to the public “is a fundamental legislative power that the people may exercise through the initiative process.”16 As with initiative and referendum powers, the right of the citizens to recall their elected officials is treated similarly.17
Some may think that a state constitutional right is irrelevant. However, “the California Constitution is, and always has been, a document of independent force”.18 California, like all 50 states, is its own sovereign entity.19 And rights provided by the California Constitution exist independently of rights provided by the United States Constitution.20
Indeed, unlike the federal constitution, the California Constitution explicitly guarantees many other fundamental democratic rights. For example, a voter who lawfully votes has the right to have their ballot counted as they intended it to be cast.21 A voter is explicitly guaranteed the right to a secret ballot.22 A voter who was disqualified from voting due to a prison term has the right to have their voting rights restored once they have completed their sentence.23
Vladimir Putin’s illegal invasion of Ukraine demonstrates the importance of protecting this right. Elected officials are not simply elected autocrats, free to make decisions without regard to public opinion, once elected to office. The right of the recall holds our elected officials consistently accountable.
They have to make decisions in light of the reality that they can be removed at any time. If they commit wrongful actions in office, they cannot escape political consequences simply because they are in their last term of office or can argue that there will be a future election to evaluate their actions.
If voters find out that they have elected a person to office who is not what they thought them to be, the voter has recourse. There is also a recourse when an elected official undertakes an unforeseen policy that citizens consider dangerous and destructive.
One cannot help but think of a Russian who consistently voted for Vladimir Putin for President on the belief that they have a smart, strategic, cunning leader, only to wake up to an invasion of a friendly neighbor for no real reason that is costing untold numbers of lives and creating unthinkable heartache and destruction. What kind of democratic recourse would that Russian citizen have if their Constitution looked like California’s?
One could object to this description. After all, as an American, I don’t have the right to recall the President or any of my federal elected officials.24
Some media commentators and on Twitter, opposed to recalls of elected officials they personally like, might argue that no one should have any more constitutional rights under a state constitution than provided to them under the United States Constitution.
Fortunately, this is not how the United States Constitution works.25 Moreover, there are numerous guaranteed rights under the California Constitution that do not exist under the federal constitution. Just to name a few:
The constitutional right of minors to seek abortions without parental consent.26
The constitutional right of women seeking abortions to be paid for by Medi-Cal.27
The constitutional right to privacy that protects people from other private citizens as well as the government.28
The constitutional right to protest and signature gather in privately owned shopping centers.29
The constitutional right of unrelated people to live together.30
The constitutional right of non-citizens to own land.31
Many question whether the current constitutional right to recall should be as broad as it currently is. After all, no official reason is needed to recall an elected official from office. However, the San Francisco School Board Recall demonstrates that the right is necessarily broad.
Alison Collins repeatedly made racist comments about Asian Americans. She made offensive heteronormative speech directed at a gay father who attempted to volunteer for the school district. However, it was not a crime for her to do so. Her racist comments are protected speech under the First Amendment.32 The First Amendment also protects her heteronormative speech.33
Her comments at official school board meetings, however vile, bigoted, or ignorant, are protected from any liability by state law.34 And indeed, had the School Board attempted to remove her from the board itself, it would have been a violation of the First Amendment.35 Elected officials receive no less protection from the First Amendment than ordinary citizens do.36
But the San Francisco School Board did not vote to remove Alison Collins from elected office. They voted to remove her as the Board’s Vice President and strip her of her committee positions.37 The First Amendment does not restrict the San Francisco School Board to organize their leadership as they see fit.38
Alison Collins could not be made criminally or civilly liable for her statements or incompetence on the School Board. However, San Francisco voters could observe Alison Collins’s behavior and decide that they did not want her in elected office. The recall process, which applies equally to all elected officials, gave them that opportunity without offending any other federal constitutional provision.39
This has a practical application in the case of a recall. Election law procedures that regulated the candidate’s speech viewpoint have been struck down as violations of the First Amendment.40 However, similar election law procedures that did not restrict a candidate’s speech viewpoint have been held to be constitutional under the First Amendment.41 If a recall election could only be held because of given reasons and one of those reasons included a provision for speech, that recall would be unconstitutional.42
Finally, a misconception about campaign finance law that Alison Collins and her supporters have expressed should be addressed. Yes, it is true that the proponents of the Recall could accept unlimited contributions to their campaign committee and spend unlimited amounts of money in the election to remove the school board members from office.43
However, as the target officer of the recall election, Alison Collins could also accept unlimited contributions to her campaign committee to fight the recall and that committee could make unlimited expenditures to oppose the recall.44 The First Amendment of the United States Constitution prohibits contribution limits on committees formed to support or oppose the Recall.45 The campaign finance rules do not unnaturally disadvantage one side over the other.
San Franciscans rose up against their School Board, exercised their constitutional rights, and removed elected officials doing a poor job. It is a right guaranteed to them in the California Constitution. It is a constitutional right that citizens of good conscience in other parts of the former Tsarist Russian Empire could only dream of having. That is a constitutional right worth having and defending.
The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author’s scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.
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