Some big news today out of California:
A pair of voters have filed suit in the U.S. District Court for the Central District of California, claiming the September 14 recall election is unconstitutional, and suggesting that the legal remedy is to add Governor Gavin Newsom’s name to the list of 46 candidates who hope to replace him or to simply call the whole thing off.
In the complaint, plaintiffs Rex Julian Beaber and A.W. Clark argue that California’s recall law violates the equal protection clause of the Constitution because it allows a sitting Governor to be ousted by a candidate who receives fewer votes, the Sacramento Bee reports.
At issue is the two-question recall ballot, which first asks voters to choose “Yes” or “No” on whether Newsom should be recalled, and then asks which of nearly four dozen candidates should replace him if more than 50 percent of voters say “Yes” to Question One. This could lead to a candidate winning with only small fraction of the vote—for instance when YouTube Democrat Kevin Paffrath and talk show Republican Larry Elder led the squad of hopefuls with 27 and 23 percent of the tally in a recent poll.
Beaber and Clark are asking the court to issue an order prohibiting the recall or to toss Newsom’s name on the contender pile, despite the fact that millions of ballots were sent out last week, with many of them already in the hands of L.A. voters.
The lawsuit is based on Erwin Chemerinsky, dean of the University of California’s Berkeley School of Law, and Berkeley law professor Aaron S. Edlin’s op-ed in The New York Times calling the Republican Recall unconstitutional:
Imagine that 10 million people vote in the recall election and 5,000,001 vote to remove Mr. Newsom, while 4,999,999 vote to keep him in office. He will then be removed and the new governor will be whichever candidate gets the most votes on the second question. In a recent poll, the talk show host Larry Elder was leading with 18 percent among the nearly 50 candidates on the ballot. With 10 million people voting, Mr. Elder would receive the votes of 1.8 million people. Mr. Newsom would have the support of almost three times as many voters, but Mr. Elder would become the governor.
That scenario is not a wild hypothetical. Based on virtually every opinion poll, Mr. Newsom seems likely to have more votes to keep him in office than any other candidate will receive to replace him. But he may well lose the first question on the recall, effectively disenfranchising his supporters on the second question.
This is not just nonsensical and undemocratic. It is unconstitutional. It violates a core constitutional principle that has been followed for over 60 years: Every voter should have an equal ability to influence the outcome of the election.
The Supreme Court articulated this principle in two 1964 cases, Wesberry v. Sanders and Reynolds v. Sims. At the time, in many states, there were great disparities in the size of electoral districts. One district for a state legislative or a congressional seat might have 50,000 people and another 250,000. Those in the latter district obviously had less influence in choosing their representative.
In Wesberry, the court held that congressional districts of widely varying size are unconstitutional because they are akin to giving one citizen more votes than another, denying citizens equal protection as a result. The court extended that reasoning later that year to state legislatures in Reynolds. Today the one-person one-vote principle requires roughly equal-size districts for every legislative body — the House of Representatives, state legislatures, City Councils, school boards — except for the United States Senate, where the Constitution mandates two senators per state.
After Chief Justice Earl Warren retired in 1969, he remarked that of all the cases decided during his time on the court, the one-person one-vote rulings were the most important because they protected such a fundamental aspect of the democratic process.
The California recall election, as structured, violates that fundamental principle. If Mr. Newsom is favored by a plurality of the voters, but someone else is elected, then his voters are denied equal protection. Their votes have less influence in determining the outcome of the election.
Here’s some more info:
Opponents of the lawsuit may point out that nothing stops a pro-Newsom voter from voting on question two, and the verbatim phrasing of the question ("Candidates to succeed GAVIN NEWSOM as Governor if he is recalled") contains the word "if." Respondents could argue the question is entirely separate from question one and is simply asking, 'If Newsom is recalled, which candidate would you prefer replace him?" which carries equal weight across the electorate, as both pro-Newsom and anti-Newsom voters will have an equal opportunity to select a successor in the hypothetical Newsom loses question one.
The lawsuit seeks to either stop the recall election entirely or add Newsom's name to the list of replacement candidates, which would almost assuredly result in Newsom remaining in power even if he is recalled on question one. The current question two field is splintered, with no replacement candidate receiving over 30% support in any recent polls. Newsom would likely dominate the second question if he is added to the ballot.
Plaintiffs filed the suit against Secretary of State Shirley Weber, who was appointed by Newsom to replace Sen. Alex Padilla. Weber has defended the recall process against legal challenges before, as her office successfully fended off a state lawsuit brought by Newson's team that hoped to print the word "Democrat" next to the governor's name on the ballot.
Weber's office has not said if it will once again defend the recall process from this lawsuit, and Attorney General Rob Bonta — also a Newsom appointee — has said his office is "monitoring" the legal theory that the recall process is unconstitutional.
"We’re aware of that argument and some of the other concerns and we’ll be making sure we stay abreast of this issue and monitoring it,” he said Monday. “We’ll be coordinating with the Secretary of State’s office to determine next steps."
It remains to be seen what happens next but Newsom and Democrats aren’t taking anything for granted:
President Biden sent an urgent message last week to the most populous state in the nation: Keep Gov. Gavin Newsom “on the job.” On the airwaves, Senator Elizabeth Warren, the prominent progressive from Massachusetts, has been repeatedly warning that “Trump Republicans” are “coming to grab power in California.”
Text messages — a half-million a day — are spreading the word on cellphones. Canvassers are making their case at suburban front doors. As some 22 million ballots land in the mailboxes of active registered voters this week in anticipation of the Sept. 14 recall election, Mr. Newsom — a Democrat elected in a 2018 landslide — has been pulling out all the stops just to hold on to his post.
The vote is expected to come down to whether Democrats can mobilize enough of the state’s enormous base to counteract Republican enthusiasm for Mr. Newsom’s ouster. Recent polls of likely voters show a dead heat, despite math that suggests the governor should ultimately prevail.
Less than a quarter of the electorate is Republican. Mr. Newsom has raised more campaign cash than all four dozen or so of his challengers put together. And the governor’s most serious rival is the talk radio host Larry Elder, who has called global warming “a crock,” says the minimum wage should be “zero-point-zero-zero,” and gave Stephen Miller, the hard-line Trump administration immigration adviser, his first big public platform.
And Newsom has been sharpening his message:
California Gov. Gavin Newsom is using increasingly stark language as he campaigns in the final month of a tight recall election, calling it “a matter of life or death” that voters keep him in office and he is increasingly targeting a single Republican candidate: talk show host Larry Elder.
Mail-in voting already has started and Democrats worry their voters are less aware and motivated than Republicans, who gathered the signatures that gave voters a chance to boot Newsom from office a year early. Election Day is Sept. 14 but most votes will be cast before then.
Newsom, a first-term Democrat who earlier relied on the bully pulpit of his office to make his case, is now in campaign mode, with a packed schedule of events. President Joe Biden announced plans to campaign for him, and prominent Democrats are warning California’s pandemic response, environmental leadership and progressive values are under serious threat.
Newsom’s latest campaign ad, released Monday, puts the election in blunt terms: “What’s at stake in the Sept. 14 recall? It’s a matter of life and death,” the narrator says. The ad calls Elder “the top Republican candidate” and highlights his opposition to mask and vaccine mandates.
FYI:
Former Rep. Doug Ose has ended his California gubernatorial campaign after suffering a heart attack just weeks ahead of the election.
"While I’m told I should expect a full recovery, additional procedures and potentially surgery are required, and it has become clear that I must now focus my attention on rehabilitation and healing," Ose said in a statement. "Sometimes you have to do things that you don’t want to do. It is what is: my campaign for governor is over."
Ose served multiple terms in Congress representing the Sacramento area before joining the field of Republicans vying to replace Gov. Gavin Newsom in a recall election. He built his campaign on conservative appeals to reduce crime and combat homelessness.
The Recall Election is on September 14th and health and Democracy are on the ballot. Click below to donate and get involved with Newsom and the California Democratic Party’s GOTV efforts:
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