Vote centers are open in the recall election of Santa Ana City Councilmember Jessie Lopez, but it’s unclear whether the election is legal.
That’s because the Orange County registrar of voters recently concluded the city was using the wrong district boundaries and the wrong population data to calculate how many signatures were needed to trigger the recall and who should get to vote.
As a result, nearly 1,200 voters who, according to O.C. Registrar Bob Page’s recent calculations, should be able to vote in the Nov. 14 election did not get ballots.
Using the correct district boundaries, Page also calculated that the initial recall petition actually fell short of the number required to hold an election by 230 signatures. Last week, Page rescinded his initial verification that recall petitioners had met the signature threshold.
But despite all this, the election continues. Whether the results will stand may ultimately be a judge’s decision if Lopez follows through on an announcement last week that she intends to challenge the election in court….
Aist spoke with six outside election experts to get their opinions on the Santa Ana recall snafu, two of them county registrars of voters.
They told us:
- Page, the O.C. registrar of voters, is right — there is a fundamental error in the Lopez recall election. The wrong district boundaries were used to calculate the number of signatures needed to trigger the recall and to determine who gets to vote.
- Nevertheless, California election law isn’t exactly straightforward on the subject.
“I can certainly understand how mistakes are made because the law is not at all clear,” said Douglas Johnson, president of National Demographics Corporation, a company that assists local governments with redistricting.
The experts consulted by LAist agreed that California law and court precedent have established that elected officers are to represent the population that initially voted them into office. And, that the same population should get to decide whether to remove their representative from office.
That means, in the case of Santa Ana, that the district as it existed when Lopez was elected in 2020 should get to vote on whether to recall her. But recall proponents would need a thorough understanding of California election law to catch this nuance, experts said.
“The fact that the answer is clear doesn’t mean that the question comes up often enough for it to be on the top of everybody’s mind,” said Fredric Woocher, a Los Angeles-based election lawyer.
Bridge Michigan has the unofficial results on yesterday’s recall election of a Michigan town clerk:
Voters in deeply conservative Adams Township on Tuesday night rejected elections clerk Stephanie Scott, ousting the Republican official who questioned the accuracy of her own voting machines in a dispute that prompted a state police investigation.
Unofficial results from Hillsdale County show Scott lost her recall election to independent challenger Suzy Roberts by a nearly 2-1 margin, with Roberts winning 406 votes to Scott’s 214.
Neither Scott nor Roberts immediately responded to Wednesday morning voicemails seeking comment on the election results.
But Gail McClanahan, a 75-year-old retiree who organized a petition drive to force the recall election, called the results a win for local voters frustrated by the two-year saga that began in 2021, when the state stripped Scott of her ability to administer elections.
“We’re just so happy that Adams Township believed us,” McClanahan told Bridge Michigan. “We said there’s no election fraud here. We’ve lived here all of our life.”
She added that Roberts won, in part, because of her call to “Make Adams Township Boring Again.”
In a victory for recall organizers, Louisiana Secretary of State Kyle Ardoin on Wednesday agreed to slash the number of signatures needed to force a vote on Mayor LaToya Cantrell’s future, prompting a sharp rebuke from the mayor and raising the stakes of an ongoing count of thousands of names.
The deal between Ardoin, a Republican, and leaders of the campaign to recall Cantrell, a Democrat, was aimed at settling a lawsuit alleging that the city’s voter list contains thousands of people who have moved out of New Orleans or have died.
No one will be removed from the voter rolls as a direct result of the deal, which Civil District Court Judge Jennifer Medley endorsed Wednesday afternoon.
Instead, Ardoin’s office agreed that for the purposes of the recall campaign alone, there should have been 25,000 fewer people on the city’s list of active voters. Under state law, that cuts the number of signatures needed to force a recall vote by 5,000, or 10% of the 49,976 that was previously required.
The Ninth Circuit issued its decision in Clark v. Weber, approving California’s two-step recall process. In the recall, voters first vote “yes” or “no” on the recall; after that, they may vote on a new candidate for governor, but the sitting governor is ineligible to appear at the second stage. Some suggested this violated the principle of “one person, one vote,” as a candidate could receive more “no” votes in the first stage than any replacement candidate receives at the second stage. Ned Foley, and I, here at ELB (among others elsewhere) expressed some skepticism about this argument.
A lawsuit followed, and that case reached the Ninth Circuit. In an opinion by Judge Watford (joined by Judges O’Scannlain and Hurwitz), the court upheld the law. From the heart of the opinion:Continue reading Ninth Circuit upholds California’s two-step recall process
Looking to oust the governor? Ed Brown has just the right merch for you.
Camouflage Recall Newsom hats and Recall Newsom masks. He’s gotRecall Newsom yard signs. A stack of Recall Newsom pamphlets.
But just days before California voters decide whether to push Democrat Gavin Newsom from office, the trailer off Golden Chain Highway was mostly a shrine to former President Trump.
“As far as I’m concerned, Trump is the president,” said Brown, 67.
And as for the recall election?
“They’ll probably do something to cheat,” he said of Newsom’s supporters, adding that he will vote for Larry Elder because “he’s more like Trump; he’s for the people.”
The Republican-backed recall election could not be more consequential for California. Set amid a deadly wave of the COVID-19 pandemic, with record-breaking wildfires and a relentless drought drying fields and faucets, it gives the GOP its best shot in over a decade at governing the nation’s most populous state.
And if there’s a symbolic heart of recall mania, it may be here in Amador County in the Sierra foothills, where about 1 in 5 registered voters signed petitions to give Newsom the boot. That’s the highest concentration in California.
The most fervent support for the recall has come from Northern California, where rural conservatives say that their voices are drowned out in Sacramento by urban Democrats and that they would be better off seceding to form their own state called Jefferson.
And yet, in many ways, this election is still about a man named Donald J. Trump.
Conservatives talk about the recall effort through the lens of Trump’s lies that he won the 2020 election. By and large, they refuse to cast their ballots by mail, believing his false claims that mail-in voting leads to rampant voter fraud. If Newsom prevails, many won’t trust the results — just as they didn’t after Trump lost.
For weeks, legal scholars have debated whether the recall election of Gov. Gavin Newsom could be found unconstitutional if Newsom failed to realize a “no recall” majority of the ballots cast and was ousted by a candidate who received fewer votes than he did.
Although it’s impossible to predict how courts will rule, many experts say the current recall process has long survived legal challenges, and probably would again, even if a fringe candidate won on Sept. 14 and became governor with a minority of overall votes.
That view is based on court decisions on election law, especially rulings stemming from the recall election of Gov. Gray Davis, when voters removed Davis in 2003 and replaced him with Arnold Schwarzenegger, a popular actor who went on to win reelection.
In that case, more people voted for Schwarzenegger than Davis so the candidate with the most votes won. Even so, California’s recall scheme permits a candidate with fewer votes to prevail over an incumbent, as was demonstrated by the state’s last successful recall of an elected legislator.
Check it out! No one knows more about recall elections than Spivak.
Mail-in ballots for California’s gubernatorial recall election are going out now, and notably absent from the roster of candidates to replace Gov. Gavin Newsom are any prominent Democrats. That’s because Newsom urged his fellow Democrats not to enter the race, arguing that doing so would lend legitimacy to the recall drive.
As a result, some Democratic and left-leaning independent voters are thinking about writing in the name of an experienced politician with like-minded views just in case the Sept. 14 recall succeeds. They can certainly do so, but they’ll probably be wasting their vote.
California law couldn’t be more clear about your right to declare your support for the candidate of your choice, even if that person’s name isn’t on the ballot. “Each voter is entitled to write the name of any candidate for any public office, including that of President and Vice President of the United States, on the ballot of any election,” the California Elections Code states.
Even better, you don’t have to spell the candidate’s name correctly. You just have to scrawl a “reasonable facsimile” into the write-in space, which is at the end of the long list of names on the ballot.
There’s one caveat, though, and it’s the exception that eats the rule. Write-in votes will be counted only for people who have filed the papers necessary to qualify as candidates. That anti-recall statement you think you’re making by writing in Newsom’s name on the ballot? No one will know about it because your vote won’t be recorded.
Politico has a story on a new federal lawsuit raising a constitutional challenge to the procedures that California uses for its gubernatorial recall. The lawsuit follows upon a NY Times op-ed from last week by Erwin Chemerinsky and Aaron Edlin, which argued that California’s procedures violate the one-person-one-vote doctrine of Reynolds v. Sims (and related precedents) because Gov. Newsom can receive more votes in the first (recall) phase of process than the leading candidate does in the second (replacement) phase of the process. Because only a plurality, and not a majority, is required in the second (replacement) phase, Newsom could fall just short of a majority in the first (recall) phase and then be replaced by a candidate whose plurality is far short of a majority and thus far lower than the number of votes in favor of retaining Newsom. As the op-ed observed, the problem could be solved by permitting Newsom to be one of the candidates eligible in the second (replacement) phase of the process, but given the way the California procedure is designed, if there is a majority of votes to recall Newsom in the first phase of the process, he’s ineligible from being a candidate in the second phase.
The California procedure does seem seriously flawed, to put it mildly. (I confess that I haven’t focused on it specifically before.) In general, I strongly favor majority-winner rather than plurality-winner elections. That point was the main theme of my book Presidential Elections and Majority Rule. It’s also the core of the claim that Congress should adopt a majority-winner requirement for congressional elections, as argued in the forthcoming article Requiring Majority Winners for Congressional Elections: Harnessing Federalism to Combat Extremism.
But it is one thing to say that majority-winner elections are desirable policy, and quite another to say that they are constitutionally mandated by virtue of the one-person-one-vote doctrine. Perhaps the particular California procedure is constitutionally flawed in a way that would not requiring judicial invalidation of all plurality-winner elections–although the idea that a candidate who is defeated in a first phase of a two-part electoral process is ineligible to be on the ballot in the second stage of the process was upheld in another case from California, involving the state’s “sore loser” law: Storer v. Brown, 415 U.S. 724 (1974). Thus, it’s not clear to me that the recall system is unconstitutional just because Newsom can’t compete in the second phase of the process after he’s disqualified in the first phase.
Both phases, considered separately, seem to comply with the basic idea of one-person-one-vote: each voter’s vote counts equally, first for determining whether Newsom is recalled and second for determining the winner of the plurality replacement election (for which Newsom is ineligible by virtue of being recalled). I could imagine the judicial activism of the Warren Court, which propagated the one-person-one-vote doctrine, invalidating the California recall system just because it offended the Court’s views of how democracy should work. But I’m not sure that the current Roberts Court will be as eager to apply the one-person-one-vote jurisprudence as aggressively as its Warren Court authors would.
Still, the case and issue seem interesting and important, and my own views on the specific constitutional question remain tentative as I’m just considering it for the first time. I very much welcome others weighing in on the merits of the pending suit.
The opinion in Howard Jarvis Taxpayers Association v. Weber is here.
Maura Dolan at the Los Angeles Times:
A Sacramento judge tentatively decided Wednesday to reject a lawsuit by recall leaders challenging Gov. Gavin Newsom’s description of them as “Republicans and Trump supporters.”
“As persuasively demonstrated by Governor Newsom,” Sacramento County Superior Court Judge Laurie Earl wrote, “the recall effort was clearly spearheaded by Republicans.”
California recently enacted a law to compel presidential candidates and gubernatorial candidates to disclose their tax returns as a condition for appearing on the primary ballot. The presidential rule was targeted at Donald Trump; the gubernatorial rule added at the behest of Gavin Newsom, who was voluntarily disclosing tax returns anyway. While Jerry Brown had vetoed a similar bill, Newsom signed the bill. A federal district court and the California Supreme Court independently enjoined enforcement of the presidential primary component (which I discuss, among other things, in Weaponizing the Ballot, recently published in the Florida State University Law Review; enjoined, despite the serial assurances of its constitutionality mentioned in Newsom’s signing statement).
On the gubernatorial side, Division 8 of the Elections Code includes rules for the primary. Section 8902(a) provides, “Notwithstanding any other law, the name of a candidate for Governor shall not be printed on a direct primary election ballot, unless the candidate, at least 98 days before the direct primary election, files with the Secretary of State copies of every income tax return the candidate filed with the Internal Revenue Service in the five most recent taxable years, in accordance with the procedure set forth in Section 8903.”
Newsom now faces a gubernatorial recall election. A number of candidates filed to challenge him.
One might think that this tax disclosure provision would not apply to a recall election. After all, the Code uses the word “primary,” not “recall.” Ballot access for a recall election is governed by an entirely separate part of the Elections Code, Division 11. Professor Jessica Levinson at Loyola Law School noted that it’s “going to be hard to overcome a plain language problem.”
One might think. But it didn’t dissuade California’s Secretary of State from summarizing that “gubernatorial candidates,” not primary candidates, are required to disclose tax returns. And she enforced the rule, dutifully disclosing the sordid details of dozens of candidates, which you’re welcome to peruse here, and excluding any candidate who failed to comply.
One prospective candidate, Larry Elder, failed to comply with the law, apparently inadvertently failing to redact some information from his tax returns. He sued, and a state court found he should appear on the ballot. As the court said, “I don’t find that Mr. Elder was required to file tax returns at all.” By its plain text, the statute applies to primaries, not recalls.
Whether other candidates were improperly excluded from the ballot for failure to file tax returns remains to be seen. Did it “scare off” any candidates? Time will tell if the California recall ballot gets much longer in the days ahead as the recall election rapidly approaches and ballots need to be printed.