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Political Litigation

Voters File Complaint Calling California Recall Initiative Unconstitutional

— August 17, 2021

The complaint alleges that people who support Newsom’s removal will be given “two votes” to his supporters’ one.

A recently filed federal lawsuit is seeking to halt or stop a California recall initiative that could see state Gov. Gavin Newsom ousted from office.

According to The Hill, the lawsuit was filed in U.S. District Court for the Central District of California by two in-state voters.

In their complaint, the voters claim that the recall election, in its current form, gives unfair leverage to people would already support Newsom’s removal.

The recall vote, scheduled for September 14th, presents voters with two questions: the first, whether Gov. Newsom should be yanked from office; and the second, which candidate should replace him.

The Hill notes that the list of potential candidates does not list Newsom as an option.

Scales of Justice. Image via Flickr/user:mikecogh. (CCA-BY-2.0).

The lawsuit alleges the possibility that Newsom could receive more votes than any listed candidate, but fail to remain in office—and be replaced by someone who received fewer votes than he may.

Currently, the California Democratic Party is urging voters to cast their ballot against the recall initiative while leaving the second question blank.

“Thus, although Gov. Newsom could receive more votes against his recall on issue 1, still a candidate who seeks to replace him and who receives fewer votes could be chosen as Governor,” the lawsuit states, suggesting that the recall’s current structure violates the U.S. Constitution’s equal protection provisions.

“This process is violative of the Equal Protection and Due Process Clauses of the Constitution’s Fourteenth Amendment, because it 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 complaint observes.

Erwin Chemerinsky, a constitutional law expert and dean of the University of California’s Berkeley School of Law, recently penned an op-ed in The New York Times, wherein he argued that the recall in its current form is unconstitutional.

“The court could declare the recall procedure unconstitutional and leave it to California to devise a constitutional alternative,” Chemerinsky wrote, in a piece that was partially re-printed by POLITICO. “Or it could simply add Mr. Newsom’s name to the list of those running to replace him.

“That simple change,” Chemerinsky added, “would treat his supporters equally to others and ensure that if he gets more votes than any other candidate, he will stay in office.”


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