September 17, 2021

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Federal lawsuit challenges California recall as unconstitutional – POLITICO

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California Gov. Gavin Newsom speaks during a news conference in Sacramento, Calif.

California Gov. Gavin Newsom speaks during a news conference in Sacramento, Calif. | Justin Sullivan/Getty Images

OAKLAND — Two California voters are challenging the legality of the state’s recall system less than a month before the Sept. 14 election, echoing concerns from constitutional scholars as Gov. Gavin Newsom fights for his political life.

A complaint filed in U.S. District Court for the Central District of California argues that the state’s recall provision violates the equal protection clause of the U.S. Constitution by allowing sitting governors to be replaced by candidates who have received fewer votes. The plaintiffs, Rex Julian Beaber and A.W. Clark, want a court order either prohibiting the recall election or adding Newsom’s name to the replacement candidate list. Elections officials have already sent millions of ballots ahead of a state deadline today.

Gubernatorial recalls in California involve a two-part ballot. Voters are asked whether to recall the sitting governor, then who should replace the governor. If a majority of voters oust Newsom, whichever candidate receives the most votes on the second question would replace him.

That allows a replacement candidate to be elected with a small plurality — and potentially with far fewer votes than the number of votes cast to keep the current governor. While polls show Newsom in a tight race to stay in office, the leading Republican contender to replace Newsom has consistently registered support from a quarter or less of the electorate.

Constitutional law expert Erwin Chemerinsky, dean of the University of California, Berkeley School of Law, raised that precise scenario in a New York Times op-ed last week arguing California’s recall process is unconstitutional. Chemerinsky and law and economics professor Aaron Edlin argued for altering the rules to allow governors stand as candidates on the second question and advocated for a legal challenge compelling the courts to intervene.

“The court could declare the recall election procedure unconstitutional and leave it to California to devise a constitutional alternative,” Chemerinsky wrote. “Or it could simply add Mr. Newsom’s name on the ballot to the list of those running to replace him. That simple change would treat his supporters equally to others and ensure that if he gets more votes than any other candidate, he will stay in office.”

Beaber, a Los Angeles attorney and clinical psychologist, would not say in an interview if he’s a Democrat.

“I would prefer not to say, simply because I think it’s irrelevant,” he said Monday. “To me it would be unfortunate if party politics was the driving force behind the consideration of this lawsuit. This lawsuit seeks on its face to declare a current California remedy as unconstitutional and it would apply regardless of whether it was a Democrat or a Republican already in office.”

Elected Democrats have not publicly embraced Chemerinsky’s reasoning or backed such a legal challenge. But Attorney General Rob Bonta said Monday that he was monitoring both the lawsuit and the underlying legal debate.

“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,” Bonta said, adding of the lawsuit, “We’ll be coordinating with the secretary of state’s office to determine next steps.

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