Federal Lawsuit Calls California Recall Election Unconstitutional

Two California voters have filed a lawsuit challenging the constitutionality of the state’s recall system less than one month before the recall election of Gov. Gavin Newsom on Sept. 14, Politico reported.

A suit filed in U.S. District Court for the Central District of California by Rex Julian Beaber and A.W. Clark argues that the state's recall provision violates the equal protection clause of the U.S. Constitution by permitting sitting governors to be replaced by candidates who have received fewer votes.

The plaintiffs seek a court order either prohibiting the recall election or adding Newsom's name to the replacement candidate list.

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 vote to oust Newsom, whichever candidate receives the most votes on the second question becomes the next governor.

This system means that a replacement candidate can 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 indicate that Newsom is in a close race to remain in office, the leading Republican contender to replace him has consistently garnered support from only a quarter or less of the electorate.

Dean of the University of California, Berkeley School of Law Erwin Chemerinsky and economics professor Aaron Edlin last week raised exactly this scenario in a opinion piece in The New York Times.

"The court could declare the recall election procedure unconstitutional and leave it to California to devise a constitutional alternative," according to the piece. "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."

However, Vikram David Amar, dean and Iwan Foundation professor of law at the University of Illinois College of Law, and Evan Caminker, former dean, and currently the Branch Rickey Collegiate professor of law at the University of Michigan Law School, rejected the arguments made in the opion piece, saying there is no voting inequality concern of constitutional magnitude here, The Center Square reported.

They also insist that the argument in the lawsuit was already raised, refuted, and rejected during the Gray Davis recall contest two decades ago.

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