Federal lawsuit challenges California recall as unconstitutional

[LetMyPeopleVote]

This is a very interesting lawsuit https://www.politico.com/states/california/story/2021/08/16/federal-lawsuit-challenges-california-recall-as-unconstitutional-1390127

Two California voters are challenging the legality of the state’s recall system less than a month before the Sept. 14 election, echoing concerns from constitutional scholars as Gov. Gavin Newsom fights for his political life.

A complaint filed in U.S. District Court for the Central District of California argues that the state's recall provision violates the equal protection clause of the U.S. Constitution by allowing sitting governors to be replaced by candidates who have received fewer votes. The plaintiffs, Rex Julian Beaber and A.W. Clark, want a court order either prohibiting the recall election or adding Newsom's name to the replacement candidate list. Elections officials have already sent millions of ballots ahead of a state deadline today......

Constitutional law expert Erwin Chemerinsky, dean of the University of California, Berkeley School of Law, raised that precise scenario in a New York Times op-ed last week arguing California’s recall process is unconstitutional. Chemerinsky and law and economics professor Aaron Edlin argued for altering the rules to allow governors stand as candidates on the second question and advocated for a legal challenge compelling the courts to intervene.

“The court could declare the recall election procedure unconstitutional and leave it to California to devise a constitutional alternative,” Chemerinsky wrote. “Or it could simply add Mr. Newsom’s name on the ballot to the list of those running to replace him. That simple change would treat his supporters equally to others and ensure that if he gets more votes than any other candidate, he will stay in office.”

[LetMyPeopleVote]

1. Newsom recall lawsuit

This is from one of the legal blogs that I follow https://electionlawblog.org/?p=124129

The lawsuit follows upon a NY Times op-ed from last week by Erwin Chemerinsky and Aaron Edlin, which argued that California’s procedures violate the one-person-one-vote doctrine of Reynolds v. Sims (and related precedents) because Gov. Newsom can receive more votes in the first (recall) phase of process than the leading candidate does in the second (replacement) phase of the process. Because only a plurality, and not a majority, is required in the second (replacement) phase, Newsom could fall just short of a majority in the first (recall) phase and then be replaced by a candidate whose plurality is far short of a majority and thus far lower than the number of votes in favor of retaining Newsom. As the op-ed observed, the problem could be solved by permitting Newsom to be one of the candidates eligible in the second (replacement) phase of the process, but given the way the California procedure is designed, if there is a majority of votes to recall Newsom in the first phase of the process, he’s ineligible from being a candidate in the second phase.

The California procedure does seem seriously flawed, to put it mildly. (I confess that I haven’t focused on it specifically before.) In general, I strongly favor majority-winner rather than plurality-winner elections. That point was the main theme of my book Presidential Elections and Majority Rule. It’s also the core of the claim that Congress should adopt a majority-winner requirement for congressional elections, as argued in the forthcoming article Requiring Majority Winners for Congressional Elections: Harnessing Federalism to Combat Extremism.

But it is one thing to say that majority-winner elections are desirable policy, and quite another to say that they are constitutionally mandated by virtue of the one-person-one-vote doctrine. Perhaps the particular California procedure is constitutionally flawed in a way that would not requiring judicial invalidation of all plurality-winner elections–although the idea that a candidate who is defeated in a first phase of a two-part electoral process is ineligible to be on the ballot in the second stage of the process was upheld in another case from California, involving the state’s “sore loser” law: Storer v. Brown, 415 U.S. 724 (1974). Thus, it’s not clear to me that the recall system is unconstitutional just because Newsom can’t compete in the second phase of the process after he’s disqualified in the first phase.

Both phases, considered separately, seem to comply with the basic idea of one-person-one-vote: each voter’s vote counts equally, first for determining whether Newsom is recalled and second for determining the winner of the plurality replacement election (for which Newsom is ineligible by virtue of being recalled). I could imagine the judicial activism of the Warren Court, which propagated the one-person-one-vote doctrine, invalidating the California recall system just because it offended the Court’s views of how democracy should work. But I’m not sure that the current Roberts Court will be as eager to apply the one-person-one-vote jurisprudence as aggressively as its Warren Court authors would.

Still, the case and issue seem interesting and important, and my own views on the specific constitutional question remain tentative as I’m just considering it for the first time. I very much welcome others weighing in on the merits of the pending suit.

[Fresh_Start]

2. too late for that remedy...ppl have already voted

I wrote in Newsom even knowing he wasn't on the ballot and it was a protest vote...but other ppl didn't do that

[wryter2000]

4. I would think

A judge could order an injunction against counting the ballots and/or call the whole process unconstitutional. He could order the state to redo the election to add Newsom's name to question 2.

[jimfields33]

3. If I were a judge, I might go along with this but in my

Summary, I’d remind California state government that they have supermajority so what are you going to do about it?