Federal lawsuit argues that California recall provisions are unconstitutional

[NewYorkExpress]

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.


Gubernatorial recalls in California involve a two-part ballot. Voters are asked whether to recall the sitting governor, then who should replace the governor. If a majority of voters oust Newsom, whichever candidate receives the most votes on the second question would replace him.

That allows a replacement candidate to be elected with a small plurality — and potentially with far fewer votes than the number of votes cast to keep the current governor. While polls show Newsom in a tight race to stay in office, the leading Republican contender to replace Newsom has consistently registered support from a quarter or less of the electorate.

Do you believe that this lawsuit has any merit?

[SteveRogers]

Nah, this is a bad lawsuit. Recalls may be dumb, but the argument being made here sounds like a clear misunderstanding of the “one person, one vote” principle.

[brucejoel99]

As somebody who opposes recalls in general because impeachment exists (see: NY) & the Newsom recall in particular because it's stupid as f**k, this attempted application of federal constitutional principles is quite possibly one of the most ludicrous constitutional arguments which I've ever seen put forth in court.

The Californian recall process as provided for by Sections 13-19 of Article II of the California Constitution & given effect to by the California Elections Code results in 2 separate elections being conducted on the same ballot. The principle of individuals being afforded equal representation in voting applies to both of those elections: each person who votes on the recall question has one vote, each of which equally impacts the ultimate material outcome of said question (i.e., to recall or not to recall); likewise, each person who votes on the replacement question has one vote, each of which equally impacts the ultimate material outcome of said question (i.e., which replacement candidate obtains a plurality, wins that question, & thus becomes Governor in the event that a majority voted "Yes" on the recall question). Contrary to this suit's assertions, nowhere in determining the outcomes of those questions is a denial of equal protection provided for. If at the end of the day, there were more votes cast for "No" on the recall question than there were for the plurality winner of the replacement question, then tough cookies: that's not a denial of equal protection, given that A.) they're separate elections; & B.) the recalled official isn't permitted to compete on the 2nd question. If that latter aspect is somehow unconstitutional &/or a denial of the recalled official's supporters' equal protection, then I guess California's lifetime 2 term-limit for state officers is also unconstitutional in the same fashion, given that it - taking the aforementioned argument to its logical extension, anyway - denies the equal protection of supporters of term-limited officers by disenfranchising them.

Now, it's one thing to have a problem with the fact that only a plurality is required to win the second question in the event that the result of the first question needs to be given effect to, but unless there's now some previously unheard-of theorem out there stipulating that plurality elections in & of themselves are unconstitutional (which is just, y'know, lol), that's a question of electoral policy left to the political process rather than constitutional principles left to the legal process. If one has such a problem, then the only correct avenue for correcting that problem would be to call for the ratification of an amendment to the plurality provision in Section 15(c) of Article II of the California Constitution, because by no means is there any federal constitutional question of law that's at play in this here.

[ibagli]

A.) they're separate elections;

How? They're literally inseparable in California law, in that one literally can't ever be held without the other, and the result of the replacement question is entirely contingent on the results of the recall question.  How can the replacement election be a separate election without its own separate and independent consequences?

I'm not a fan of the lawsuit's argument that "a person who votes for recall has twice as many votes as a person who votes against recall" though. If anything, using that logic, it's the other way around; someone who votes against recall gets to vote for Newsom and someone else. I think the California recall process certainly violates the spirit of one person-one vote, but that's not a great framing.

(On a more realist note, I think the courts should treat an equal protection argument, maybe a better-constructed one than this one, very seriously because it's an escape valve from an possibly extremely dangerous situation, where the range of legitimate responses to what would plainly and obviously be a usurpation of democratic control of the state would encompass actions not normally seen as appropriate in a modern democracy. Legitimacy crises are very bad and it's fine to bend some texts here and there to steer clear of them. This is also why I thought faithless elector laws should be upheld regardless of the strengths of the arguments. I have a lot of problems with the federal judiciary but I think the courtrooms are still a fairer venue than the streets.)

[brucejoel99]

A.) they're separate elections;

How? They're literally inseparable in California law, in that one literally can't ever be held without the other, and the result of the replacement question is entirely contingent on the results of the recall question.  How can the replacement election be a separate election without its own separate and independent consequences?

In that the votes of one don't have bearing on the result of another. Each vote cast on the recall question is cast by one voter, each of whose vote equally impacts the recall question's material outcome (i.e., to recall or not to recall); likewise, each vote cast on the replacement question is cast by one voter, each of whose vote equally impacts who wins the replacement question. Yes, the result on the 2nd question can't be given effect to unless the 1st question is, but that doesn't render its conduction as a separate question - with each respecting "one person, one vote" - any different.

[Antonio the Sixth]

This is pure hackery. It's no different than those absurd Republican lawsuits challenging RCV, and if these people are Democrats they should be ashamed of stooping to that level.

[lfromnj]

IMO the recall should be illegal because the signatures got way too many delays