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A Lawsuit Argues California's Recall Election Is Unconstitutional. Will A Newsom Appointee Agree?

A volunteer stands in a supermarket parking lot holds a poster that reads: RECALL Gavin Newsom Sign Here. A bright yellow and red sign in the foreground bears a similar message.
Volunteers with the Newsom recall effort gather signatures in the parking lot of a grocery store in Sacramento on Jan. 5, 2021.
( Anne Wernikoff
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A federal lawsuit that argues voters for Gov. Gavin Newsom could be disenfranchised by California’s recall election is seeking to halt or fundamentally change the ballot ahead of the Sept. 14 election.

Two California voters, including a Los Angeles attorney, have sued Secretary of State Shirley Weber, arguing the recall violates the 14th Amendment’s equal protection clause and the one-person, one-vote principle enshrined in American democracy.

The plaintiffs, Rex Julian Beaber and A.W. Clark, are seeking a preliminary injunction to halt the recall election or — falling short of that — to add Governor Newsom to the ballot as a candidate. County election officials are mailing ballots to all 22 million registered voters in California, and the bulk of those will hit mailboxes by later this week.

The California recall ballot has two questions: the first reads, “Shall GAVIN NEWSOM be recalled (removed) from the office of Governor?" The second presents a list of candidates to replace the governor. Newsom himself is not legally allowed to appear on the list and cannot qualify as a write-in candidate.

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If more than 50% of voters select “yes” on the first question, the candidate who gets a plurality of votes on the second will be the new governor. In a crowded field, with the vote fractured among 46 certified recall candidates, a replacement candidate could win with low-double-digit support among recall voters. There is no runoff provision.

“Thus, although Gov. Newsom could receive more votes against his recall on issue 1, still a candidate who seeks to replace him and who receives fewer votes could be chosen to be Governor,” the lawsuit says.

The lawsuit also argues that the system “gives to voters who vote to recall the Governor two votes — one to remove [Newsom] and one to select a successor, but limits to only one vote the franchise of those who vote to retain [Newsom] ... so that a person who votes for recall has twice as many votes as a person who votes against recall.”

The reasoning echoes an opinion essay by Berkeley Law School Dean Erwin Chemerinsky and professor of law and economics Aaron Edlin published last week in The New York Times. They presented this hypothetical scenario to illustrate the problem:

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.

Former Gov. Arnold Schwarzenegger was properly elected in the 2003 recall election, Chemerinsky and Edlin argue, because he received 48.5% of the second ballot vote, more than the 44.6% of voters who supported keeping Gov. Gray Davis in office.

Anne Hyde Dunsmore, campaign manager for the pro-recall group Rescue California, rejected the lawsuit as “frivolous.”

“The recall was placed in the state’s constitution 110 years ago by progressives so that people could have a greater say in government,” Dunsmore told KPCC/LAist in an interview. “It’s been challenged umpteen times to no avail. So I doubt anything’s going to change in four weeks.”

Recent polls show that support for ousting the governor from office is near the margin of error, Dunsmore pointed out. “Newsom’s efforts to stop the recall are trending in the wrong direction,” Dunsmore said. “He's desperately grabbing at other tools to reverse it. I think this is just going to suppress [Democratic voter turnout] more.”

It appears Attorney General Rob Bonta’s office will represent the state in the case. “The Secretary of State's Office is our client in this matter,” the Attorney General’s office said in response to an e-mail inquiry.

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Bonta was appointed to his post by Newsom in March. The governor named Weber to fill the Secretary of State role in December.

In an interview, an attorney representing Beaber and Clark pointed out the sticky political implications of state officials litigating the case.

“This lawsuit is a hot potato for the other side,” said attorney Stephen Yagman. “Attorney General Rob Bonta was appointed by Governor Newsom. Secretary of State Weber got her position the same way. If they were to oppose the [lawsuit], they would be biting the hand that appointed them.”

At least one of the plaintiffs in the lawsuit, Beaber, is a registered Democrat.

On Monday, the case was assigned to Federal District Court Judge Michael W. Fitzgerald. He was nominated by President Obama in 2011 and confirmed to the bench in 2012.

Yagman said he filed an ex parte application, requesting urgent action by the court.

KPCC/LAist reached out to Secretary of State Shirley Weber, the California Republican Party and Rescue California, a pro-recall group, for comment. We will update the story with any further developments.

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