Jonathan Turley – 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.

I do not see the clear or even compelling basis for declaring the recall system unconstitutional on that ground. First, as a practical matter, citizens may vote against a recall simply because they do not want to see a turnover of office as opposed to supporting Newsom. Second, the disparity in the two votes is due to the first vote being a binary choice. Either Newsom is in or Newsom is out. The state understood that reality when it allowed any qualified person to run in the second vote. The value a replacement securing a majority was not as great as giving the greatest degree of opportunity for others to seek the office.

Finally, there is equality in voting. The first vote is by majority. The second vote can be won by plurality. However, all of the votes are weighed the same. Indeed, the professors do not object to some voters being able to elect their choice by plurality.

The essay suggests that, since the losing voters in the first round would prefer Newsom to the alternatives, their votes are being watered down or curtailed. However, they lost that first vote and those same voters then fractured due to the large number of alternative candidates. They still voted and their votes still were weighed the same.

Nevertheless, the professors declare that “The Constitution simply does not permit replacing a governor with a less popular candidate.” That is not correct in my view, though reasonable people can disagree on such points. After the first vote, there was no more popular candidate. At that point, Newsom was neither governor nor a candidate under California law after the first round. Of course, if these professors believe (as they state) that this is a relatively easy constitutional question, they should challenge the law. It may prove neither a close nor a viable constitutional question.

SF Source Jonathan Turley Aug 2021