A federal lawsuit filed in the U.S. District Court for the Central District of California seeks to stop the Gavin Newsom recall election from happening as scheduled on Sept. 14.
The suit, filed by voters R.J. Beaber and A.W. Clark, alleges that the recall election is unconstitutional because it denies pro-Newsom voters equal protection of the law guaranteed by the Fourteenth Amendment. This argument was made by Berkeley Law School Dean Erwin Chemerinsky, who wrote a New York Times op-ed last week arguing that because Newsom “can receive far more votes than any other candidate but still be removed from office,” 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.”
In the recall election, voters will vote on two separate questions: 1. Shall Gavin Newsom be recalled? 2. Which candidate should succeed Newsom if he is recalled? The California Democratic Party is telling its voters to leave question two blank.
“[California’s 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,” the lawsuit states.
Opponents of the lawsuit may point out that nothing stops a pro-Newsom voter from voting on question two, and the verbatim phrasing of the question (“Candidates to succeed GAVIN NEWSOM as Governor if he is recalled”) contains the word “if.” Respondents could argue the question is entirely separate from question one and is simply asking, ‘If Newsom is recalled, which candidate would you prefer replace him?” which carries equal weight across the electorate, as both pro-Newsom and anti-Newsom voters will have an equal opportunity to select a successor in the hypothetical Newsom loses question one.
The lawsuit seeks to either stop the recall election entirely or add Newsom’s name to the list of replacement candidates, which would almost assuredly result in Newsom remaining in power even if he is recalled on question one. The current question two field is splintered, with no replacement candidate receiving over 30% support in any recent polls. Newsom would likely dominate the second question if he is added to the ballot.
Plaintiffs filed the suit against Secretary of State Shirley Weber, who was appointed by Newsom to replace Sen. Alex Padilla. Weber has defended the recall process against legal challenges before, as her office successfully fended off a state lawsuit brought by Newson’s team that hoped to print the word “Democrat” next to the governor’s name on the ballot.
Weber’s office has not said if it will once again defend the recall process from this lawsuit, and Attorney General Rob Bonta — also a Newsom appointee — has said his office is “monitoring” the legal theory that the recall process is unconstitutional.
“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 Monday. “We’ll be coordinating with the Secretary of State’s office to determine next steps.”
