Lawsuit Argues California Recall Is Unconstitutional

CALIFORNIA — Another lawsuit was filed to challenge the recall election to oust Gov. Gavin Newsom.

Two California voters argued that the state's recall process was unconstitutional less than a month before Election Day, which will decide the Democratic governor's fate.

A suit filed in U.S. District Court for the Central District of California argued that the recall election could cost Newsom his post and hand it to a candidate with fewer votes than the governor himself.

If half of voters mark "yes" to recall Newsom, the opponent with the largest share of votes would become governor, according to the state.

Plaintiffs R.J. Beaber and A.W. Clark seek either to halt the recall election or add Newsom's name to the list of replacement candidates. The suit was filed Saturday against Secretary of State Shirley Weber, who was appointed by Newsom.

The recall ballot, which has already begun arriving in mailboxes around the state, asks voters two questions: Should Gov. Gavin Newsom should be recalled? And who should replace him?

The plaintiffs argued that the election is unconstitutional because it violates the equal protection and due process clauses of the 14th Amendment.

READ MORE: Halt California Governor Recall Election, UC Berkeley Profs Say

The lawsuit said that the recall process "flies in the face of the federal legal principle of 'one person, one vote,' and gives to voters who vote to recall the Governor two votes — one to remove him and one to select a successor, but limits to only one vote the franchise of those who vote to retain him and that he not be recalled, so that a person who votes for recall has twice as many votes as a person who votes against recall."

In short, Newsom could receive more votes against his recall than a candidate who seeks to replace him, but a candidate with fewer votes could become the next governor.

The process denies voters the "'essence of democracy,' because their right to vote is denied by debasement and dilution ... . [Californians] get to vote only once, while all voters who vote in favor of recall, should they prevail on question 1, will get two votes," the lawsuit argued.

Last week, Erwin Chemerinsky, dean of the University of California, Berkeley School of Law, also called the process unconstitutional in an op-ed in The New York Times.

"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," Chemerinsky wrote.

In 2003, during the state's last recall election, the issue was not raised, Chemerinsky said, because Gov. Gray Davis was unseated after he received 44.6 percent of the vote, while former Gov. Arnold Schwarzenegger won the post with 48.5 percent of the vote.

On Monday, Attorney General Rob Bonta acknowledged the lawsuit.

"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 in a statement, according to multiple reports. "We’ll be coordinating with the Secretary of State’s office to determine next steps."

Several lawsuits have been filed in relation to California's gubernatorial recall election this year, including a suit to stop Newsom from painting the election as a Republican power grab in official voter guides that will be mailed to voters later this month. A judge indicated earlier this month that she is likely to allow the governor to refer to the recall as a GOP effort.

In another instance, Newsom filed a lawsuit with Weber's office to correct a paperwork blunder that left "Democratic Party" off of his title on the ballot.

Former Rep. Doug Ose dropped out of the race following a heart attack over the weekend, leaving 45 candidates in the race to unseat Newsom. The election is scheduled to go forward Sept. 14.

Recall supporters have argued that Newsom's response to the pandemic was disastrous for businesses and that his leadership revealed serious fissures within the state's crime rates, homelessness and unemployment agency after an audit found widespread fraud.

"This is — and forgive me — a Republican-backed recall," Democrat Newsom has said, adding: "These folks don't believe in science, let alone climate science, and they don't believe in the science behind this pandemic. There's a lot at stake for Californians in this race."

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