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.”
Under California state law, a sitting governor can be thrown out of office or “recalled” before that person’s term has expired. Leading the charge against Gavin Newsom is Orrin E. Heatlie (R), a 52-year-old retired county sheriff’s sergeant who disagreed with Newsom’s policies. Heatlie began gathering support, and in accordance with California election law, he filed a petition to get the question of recall onto a ballot.
As a result, ballots (some of which have already been mailed to voters) will include two questions. First, “Shall GAVIN NEWSOM be recalled (removed) from the office of Governor?” Second, ballots will list candidates to replace Newsom along with an option to write in a candidate of the voter’s choosing. (A current list of the 40+ individuals seeking to replace Newsom is available here.) Pursuant to state law, Newsom himself cannot be listed as a “replacement” candidate.
When votes are tallied, 50% or more of the voters must vote “yes” on the first question in order to remove Newsom from office. If the votes to recall reach that threshold, the votes on the second question will be tallied; the candidate with the most votes, regardless of the total number of votes, will become governor for the remainder of Newsom’s term (slated to expire on January 2, 2023). If there are 50% or more “no” votes to recall, Newsom will simply complete his term as governor.
Plaintiffs R.J. Beaber and A.W. Clark allege the California procedure for handling recalls is unconstitutional. They assert that California law allows for the possibility that Newsom could receive more votes against his recall than any one candidate receives for their election as his replacement.
For a little math aid, consider a situation where 51% of the voters voted to recall Newsom, meaning that 49% voted to keep him. Then, votes among the replacement candidates are scattered among them such that the “winner” only receives 10% of the votes. The complaint characterizes this process as affording two votes to folks who support Newsom, while only one to those who wish to replace him.