Is the Newsom recall constitutional?
-
University of California-Berkeley Dean Erwin Chemerinsky and Professor Aaron S. Edlin have purportedly solved the problem faced by Gov. Gavin Newsom. Despite overwhelming support in the media and massive fundraising on his behalf, Newsom is facing worsening polls in his fight against his recall and could lose in the election. In their guest essay for the New York Times Chemerinsky and Edlin declare any such successful recall would be unconstitutional as a denial of the principle of “one person, one vote.” The reason, however, would seem to suggest a wide array of elections as unconstitutional in the process.
Chemerinsky and Edlin start their analysis with a reasonable objection. They note that Newsom could lose the first vote on the recall but still have more votes than anyone elected in the second vote for his replacement. That seems highly likely with the large number of people vying to replace him.
That would make for a great policy argument for a change in the recall system. Indeed, I have long argued that a president should not be elected with less than a majority of votes and that we should hold runoffs of the two top candidates to guarantee majority support (the same could be done in a recall election). However, I did not argue that presidents elected with less than a majority was unconstitutional given the federal electoral college.
Chemerinsky and Edlin go further to call for challenges based on the concept of “one person, one vote” and point to the Supreme Court case law. They cite two 1964 cases, Wesberry v. Sanders and Reynolds v. Sims addressing voting districts with significantly different populations. The result is that voters in the smaller population districts had greater voting power.
Not only do the professors call for a challenge, they insist that this “should not be a close constitutional question.” I expect many judges would rule that they are correct that it is a not a close question but not for the same reason (or outcome).
For Newsom to be removed, a majority will have to declare that they no longer want him to be governor. The professors do not question that such a vote is entirely proper and constitutional.
On the second vote, Newsom is not a candidate because the majority of voters decided that they want him out of office. They did so knowing that they would then have to vote for someone else in the second vote. California decided that, rather than hold a runoff for a majority-supported replacement, they would simply accept that candidate with the most votes. There are various possible supporting reasons for such a system. The state may have viewed a recall as a traumatic and costly distraction from government. This simple process allows for someone to take office quickly and without an extended campaign. Moreover, the state may view the term as an abridged or shortened period. Presumably, a governor could be removed with only a few weeks or months remaining. The voters would then have a chance to elect a new governor if they so desired.
This has happened before. Gray Davis was removed from office in 2003 and replaced by Arnold Schwarzenegger. Davis only received only 44.6 percent for remaining in office and Schwarzenegger received 48.5 percent of the vote to assume the office. Even though he received less than fifty percent of the vote, the professors declared that “Schwarzenegger was properly elected” because he still receive more votes that Davis. Thus, the problem is not that a governor is elected with less than a majority but only that he could be elected with fewer voters than the recalled governor.
-
@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?