The Davis Recall and the Courts

Abstract

The recall of California Governor Gray Davis generated intense litigation as recall opponents sought, without much success, to convince courts to block, modify, or postpone the election. Using an interpretive case study approach, this article analyzes these outcomes and develops the theory that the courts’ reluctance to intervene in the Davis recall process was largely dictated by the nature of the recall device itself. More specifically, the recall’s only substantive question was nonjusticiable, so litigants were limited to procedural challenges, and on most of the procedural issues, courts deferred to local election officials. The constraints on judicial review of recall highlight differences between recall and initiative, a direct democracy process courts more actively check.