Newsom could be replaced by a pol recall with fewer votes

For weeks, legal scholars wondered whether Gov. Gavin Newsom’s recall election could be ruled unconstitutional if Newsom failed to secure an “un-recalled” majority of the votes cast and was ousted by a candidate who received less. voice than him.

While it’s impossible to predict how the courts will rule, many experts say the current recall process has long survived legal challenges, and likely would do so again, even if a marginal candidate won on September 14 and became governor with a minority of overall votes.

This view is based on court rulings on electoral law, particularly rulings stemming from the revocation of the election of Governor Gray Davis, when voters impeached Davis in 2003 and replaced him with Arnold Schwarzenegger, a popular actor who was later re-elected.

In this case, more people voted for Schwarzenegger than Davis, so the candidate with the most votes won. Even so, California’s recall program allows a candidate with fewer votes to trump an incumbent, as demonstrated by the latest successful state recall of an elected legislator.

In 2018, voters recalled Senator Josh Newman (D-Fullerton). On the recall issue, 41.9% voted to keep Newman. In the second ballot, in which voters are asked to choose a successor, a Republican won with just 33.8% of the vote. An incumbent who faces a revocation is not authorized to be nominated successor candidate during the second part of the ballot.

“Maybe I should have been reinstated,” Newman joked, after reading a recent essay by legal scholars who helped spark the current debate by arguing that California’s recall law violated the Federal Constitution.

Newman was in fact reinstated – but by the voters, not by the courts. He kicked the Republican who beat him on the recall in 2020 and now serves in Sacramento.

His ouster was one of 179 attempts to recall California state officials since 1913. Eleven have qualified for battle. Of these, six incumbents, including Newman and Davis, were ousted and replaced by other candidates in the same ballot.

Unlike 2003, when Davis faced a recall vote, Newsom’s impeachment attempt sparked little legal challenge from recall enemies.

Constitutional law scholar Vikram D. Amar, who followed the litigation closely during Davis’ recall, said the failure of most prosecutions had likely discouraged attempts this time around.

“Maybe people got the message,” said Amar, dean of the University of Illinois Law School, Urbana-Champaign Campus, “and thought, ‘What for? “”

In their essay in The New York Times – and another Friday in the Los Angeles Times – Dean Erwin Chemerinsky of UC Berkeley Law School and Professor of Law and Economics Aaron S. Edlin argued that California’s recall law was unconstitutional because the incumbent could be replaced by a candidate who received fewer votes. Academics said it violated a federal constitutional principle that every voter should have the same ability to influence the outcome of an election.

Judging from the polls, the professors predicted with “virtual certainty that if Newsom is recalled, he will get many more votes – probably more than double – than his replacement.”

“It makes no sense and violates the most basic notions of democracy,” they argued in the Los Angeles Times.

But when a prominent constitutional lawyer representing Governor Davis made this provocative claim in the California Supreme Court in 2003, it failed, Amar noted. The court rejected the challenge and the equal protection argument.

The challenge was to delay the election to allow Davis to appear with others in the second-round question of listing replacement candidates. This would have allowed Davis to remain governor if he had obtained the plurality of votes.

Amar said courts have long allowed rules that limit access to ballots as long as they are reasonable and not overtly discriminatory.

“The California voting process may be reckless or unnecessarily confusing, but it is not unconstitutional the way critics recently accused it,” Evan Caminker, professor of constitutional law at the University wrote this month. of Michigan, to an online forum for legal commentary.

Yet the California Supreme Court’s rulings on several anti-recall lawsuits during Davis’s recall did not set a precedent. They came in the form of decisions on whether to prosecute. At the time, six of the seven judges were appointed by Republicans. Today, five of the seven were nominated by Democrats.

Chemerinsky, in an interview, said he believed the law was unconstitutional, but agreed that the courts could decide that the recall proposal itself amounted to a separate election from the second question on replacement candidates. This would likely overcome the challenge of equal protection. Federal courts, he also noted, have been reluctant to get involved in the elections.

In the LA Times essay, UC Berkeley academics argued that the challenge should go directly to the California Supreme Court as soon as possible and that the court should be asked to rule only if Newsom wins the vote in plurality, he should be replaced by the lieutenant governor. until the end of the term.

It would be a bold move from the state’s highest court, whose judges face voters who are to be held for 12-year terms.

Without court intervention, it would take a two-thirds vote of the legislature or a signature campaign to put a measure on the ballot to amend California’s recall law, which allows for the ouster of judges as well as lawmakers and governors.

This is because the right of dismissal is enshrined in the state constitution, placed there by voters in 1911 as a means of eliminating corrupt office holders.

Nonetheless, Chemerinsky said, some changes need to be made to “increase the difficulty” of making recalls.

“Otherwise we’re going to see a real increase in that,” he said. He noted that over the past two decades a governor and a judge have been recalled.

When Davis recalled, the only lawsuit the California Supreme Court partially supported was a challenge to the requirements for potential replacement candidates to get on the ballot. The original constitutional requirement made it more difficult to put people on the list of candidates to replace a dismissed incumbent, but the rules were significantly weakened by subsequent amendment and legislation.

It would not take a constitutional amendment to revise these requirements.

Next, Chief Justice Ronald M. George wanted to delay Davis’ recall election until the court considered a legal challenge of the requirements to be listed as a successor candidate.

“The chaos, confusion and circus atmosphere that characterized the current recall process was undoubtedly brought about in large part by the extremely low threshold (…) Governor,” George wrote in a dissent to the refusal. of the court to take up the case.

Then-judge Carlos R. Moreno, at the time the only democrat appointed by the court, agreed with George.

Newsom’s recall is being challenged in federal court on equal protection grounds by Los Angeles civil rights attorney Stephen Yagman, who also brought an unsuccessful action against Davis’s recall. Lawyers said the trial was unlikely to succeed. “I think the lawsuit loses in part because it was brought too late,” said Christopher S. Elmendorf, professor at UC Davis Law School.

Amar, who has spent much of his legal career in California, doubted any criticism of the recall process Democrats and some jurists are now voicing would lead to real post-election reform. Davis’s recall has sparked similar calls for reform, but the recall law remains intact, he said.

“These things aren’t sexy, and they don’t have a riding behind them,” Amar said. “You’re not going to win an election by doing these really mundane, household things.”

Of the countless court challenges in 2003, only one changed the law, Amar said. A federal judge struck down a requirement that voters had to vote on the recall question in order to vote on successor candidates.

But another challenge briefly cast doubt on Davis’ recall election. A three-judge panel of the U.S. 9th Circuit Court of Appeals ruled that the election must be delayed due to error-prone punch card voting machines in some places. Eight days later, a larger and more conservative 9th Circuit panel overturned that decision.

Amar believes the delay caused by the court has actually hurt Davis and that Newsom would now face a similar backlash from any delay ordered by the court.

“Those eight days cost Gray Davis the momentum he had at the start of this period,” Amar said. “No one knew if there would be a recall election.”