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Does California’s Recall Process Actually Violate the Constitution?


Bay Area News Group


A pair of California voters are making that argument in a federal lawsuit against the state over its upcoming recall election of Gov. Gavin Newsom. Their argument is that the state’s recall process violates the equal protection clause because it “flies in the face of the federal legal principle of ‘one person, one vote.’”


How does it work?


In California’s process, voters will receive ballots with two questions. The first will ask whether Newsom should be recalled (i.e., removed) from office and the second will list the 40+ candidates to replace him, giving voters the option to make their choice.


When the dust settles, if 50% or more of voters answer “yes” to the first question, then the candidate with the most votes in the second question -- regardless of the total number of votes -- will become the governor for the rest of Newsom’s term (ending January 2023).


Why is this bad?


The plaintiffs are arguing that because of this process, voters who wish to recall Newsom get two votes (one to remove him and one for his successor), while those who wish to retain him as governor get just the one (voting “no” to question one).


The plaintiffs assert this disparity can result in a scenario in which Newsom can still be recalled despite receiving more votes against his recall than any one candidate gets for their election.


For example, consider the scenario outlined by Law & Crime writer Elura Nanos:


“For a little math aid, consider a situation where 51% of the voters voted to recall Newsom, meaning that 49% voted to keep him. Then, votes among the replacement candidates are scattered among them such that the “winner” only receives 10% of the votes.”


In that scenario, despite 49% of voters voting for Newsom, he could be replaced by a candidate who receives only 10% of the votes.


So, is it Constitutional?


Since we’re simply a newsletter named after the world’s greatest meal/snack, we’ll leave that to the courts to decide. However, the plaintiffs do have the support of two well-regarded legal scholars, Erwin Chemerinsky and Aaron S. Edlin, who recently authored an op-ed in The New York Times making the very argument the plaintiffs are relying on now.


To remedy the issues with the process, the plaintiffs are hoping to either halt the recall election altogether, or get the ballot changed to add Newsom as an option as a replacement for himself (thereby giving his supporters two votes).


Chemerinsky and Edlin at the very least hope the court takes the question up directly, as they say in their NYT piece, the potential disruption of leadership in one of the country’s most important states “should not be a close constitutional question.”

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