New Lawsuit Challenges Constitutionality Of Recall Election, Filed In Federal Court

A new lawsuit spurred by a New York Times op-ed piece by two UC Berkeley professors that challenges the legality of the 2021 California Governor recall election was filed in a U.S. District Court over the weekend.

Last week, UC Berkeley School of Law legal professor Erwin Chemerinsky and UC Berkeley economics professor Aaron Edlin said in the Times article that the recall election is violating the constitution by not following the equal protection clause. They noted that because Newsom was not also listed as a replacement candidate, the two question recall means that he may be voted out by a small majority but would be replaced by someone with far less of a majority of votes or indeed far fewer than the number voting to keep him in the first recall question asking if he should remain in office.

“The first question is decided by a majority vote,” said Chemerinsky and Edlin in the op-ed. “If a majority favors recalling Mr. Newsom, he is removed from office. But the latter question is decided by a plurality, and whichever candidate gets the most votes, even if it is much less than a majority, becomes the next governor. Critically, Mr. Newsom is not on the ballot for the second question.”

“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.”

“This is not just nonsensical and undemocratic. It is unconstitutional. 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.”

Both professors also noted how the 2021 recall compares to the 2003 recall which they argue as legal, despite the same rules being in place. Then-candidate Arnold Schwarzenegger had more overall votes from the second recall question of who should replace the Governor, than then-Governor Gray Davis had in people voting to keep him in office in the first question.

“This issue was not raised in 2003 before the last recall, when Gray Davis was removed from office after receiving support from 44.6 percent of the voters. But his successor, Arnold Schwarzenegger, was elected to replace him with 48.5 percent of the vote. So Mr. Schwarzenegger was properly elected,” added the professors.

“This time, we hope that a state or federal lawsuit will be brought challenging the recall election. The court could declare the recall election procedure unconstitutional and leave it to California to devise a constitutional alternative. 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.”

The op-ed quickly got the attention of many, including Democratic party leadership. However, state Democrats were largely unsure of the argument, with many comparing it to former President Donald Trump going after voting and voting processes across the nation following the 2020 Presidential election. Governor Gavin Newsom specifically avoided the issue during the weekend when questioned about it, saying that he instead wanted to focus on the election itself.

“I’m going to leave that to others,” said the Governor on Friday. “Right now, it’s not theoretical that on Sept. 14 there’s a recall ballot; I’m going to focus on what’s in front of us, and I’ll leave that to others.”

A new lawsuit

However, two voters, Los Angeles lawyer Rex Julian Beaber and A.W. Clark, pushed the issue by filing a suit in the U.S. District Court for the Central District of California in Los Angeles during the weekend, arguing almost to the word what Chemerinsky and Edlin had said earlier in the week. They argue that the election violates the equal protection clause of the Constitution due to Newsom possibly being replaced by someone who receives less votes and should be remedied by either stopping the election or by having Newsom being added as a replacement candidate.

Legal experts have noted that Beaber V. Weber is a long shot at best, largely due to the election currently being well underway, with recall ballots having already been sent out via mail, and the issue not being argued in previous recalls.

“Even if there wasn’t a recall election going on this would be a hard sell to any judge,” noted Los Angeles-based attorney “Carrie Greene,” who has been involved in constitutional law cases in the past and wanted to be known under a pseudonym, to the Globe on Tuesday. “The Governor is already on the ballot. There was already a huge case on if his party should even be attached because he had not filed it. It just doesn’t make sense, and really, by bringing up the issue now it really points to party favoritism. It’s not being said, but the timing is very suspicious. Newsom falls in the polls to being within a few points of being recalled and suddenly law experts are now first finding this as an issue. The first major polls to find it being a really close race came out in late July and early August. Op-ed came out August 11th. Again, very suspicious.”

The fact that Berkeley professors Erwin Chemerinsky and Aaron Edlin were involved also concerned many.

“Both are biased in favor of Newsom and Democrats in general,” added Greene. “You can see why many Democrats just didn’t want to have anything to do with them or their argument. It would look suspiciously partisan. And, to their credit, most saw this conflict early on and instead focused on the election instead.”

“But it is also worth looking at both of them. Edlin served under Clinton in the late 90’s as a Senior Economist at the Council of Economic Advisers and also was on the competition policy committee in the 2008 Obama presidential campaign. He’s a smart guy, extremely smart. But his political leanings show through.”

“And then there is Chemerinsky. Also very intelligent. He has helped write constitutions of entire countries and has been a part of many large cases. But his political leanings show through too, as he really went after Trump during his administration and was part of the transition team for George Gascon last year when he became the LA DA. Then unabashedly defended him in op-eds, not even pretending to be non-partisan.”

“Now here are both of them writing something that heavily influenced a lawsuit against the recall right when Newsom was really starting to wane. Not a great look.”

The Beaber and Clark lawsuit is expected to be heard in court soon.