@jolly said in Is the Newsom recall constitutional?:
It's their system. If Californians don't like it, they should change it.
I agree, the fact that these guys think it's "unfair" is a matter for the citizens and the courts.
But, along those lines, thinking about the constitutionality of not having the majority-winning candidate win, there's this:
If California’s Recall Is Illegal, So Was Jon Ossoff’s Election in Georgia
One academic cries ‘unconstitutional,’ but we won’t hold our breath for a similar pronouncement over Georgia’s peculiar system.
In the New York Times, Professor Erwin Chemerinsky argues that California’s recall system is not merely a bad idea, it’s illegal. “The most basic principles of democracy,” Chemerinsky writes,"are that the candidate who gets the most votes is elected and that every voter gets an equal say in an election’s outcome. The California system for voting in a recall election violates these principles and should be declared unconstitutional."
Specifically, Chemerinsky notes that California employs a two-step system — in which the first vote is to recall or not recall, and the second is to choose a replacement — and contends that this creates a problem, because "by conducting the recall election in this way, Mr. Newsom can receive far more votes than any other candidate but still be removed from office. Many focus on how unfair this structure is to the governor, but consider instead how unfair it is to the voters who support him."
Like California, the state of Georgia also employs a two-step process. In Georgia, though, that system applies to all elections, holding that if a candidate in the first round doesn’t acquire 50 percent of the total vote, the two best-performing candidates must proceed to a runoff. Straight off the bat, this violates Chemerinsky’s standard that if a candidate “is favored by a plurality of the voters, but someone else is elected, then his voters are denied equal protection.” In November 2020, David Perdue received 2,462,617 votes, while the runner-up, Jon Ossoff, received 2,374,519. In almost any other state, Perdue would have been declared the winner. In Georgia, he was not. Chemerinsky writes that, in California, a candidate can “receive far more votes than any other candidate but still be removed from office.” Well, this is what happened to David Perdue. Is that unconstitutional, too?
One can’t even play games by comparing the numbers in aggregate. In the second step in Georgia — the recall election — Perdue received fewer votes than Ossoff. On aggregate, though, Perdue still came out ahead. If we combine the elections, Perdue got 4,677,596 votes while Ossoff got 4,644,442. Because the votes were separate, this isn’t supposed to matter. But if Chemerinsky is correct that “the most basic principles of democracy are that the candidate who gets the most votes is elected,” that second election should never have been held in the first place. Indeed, it should be struck down as “unfair . . . to the voters who support” Perdue. And if it should have been held — if, that is, we are supposed to compare the combined tallies from the first and second steps, as Chemerinsky does in order to draw his conclusion — then Perdue was the clear winner of the race. Unconstitutional, right?
