Category Archives: recall elections

Ninth Circuit upholds California’s two-step recall process

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
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“In red California, Trump’s lies about a rigged election echo among recall supporters”

LAT:

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.

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California: “Legal Debate Aside, A Rival With Fewer Votes Could Oust Newsom”

LA Times:

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.

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“Will your write-in vote in California’s recall election count? Maybe not”

LAT:

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.

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Newsom recall lawsuit

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.

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“Newsom can call recall proponents ‘Republicans and Trump supporters,’ judge rules”

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.”

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Court concludes California candidate tax disclosure law applies only to gubernatorial primaries, not recalls

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.

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“California has 41 candidates for September recall election”

Politico: “Forty-one candidates have met the qualifications to run in the California gubernatorial recall election, less than a third of the number who ran in the state’s memorable 2003 contest and well below what some political experts months ago had predicted, according to an official list released Saturday night.” Those on the list include former San Diego Mayor Kevin Faulconer, former Rep. Doug Ose, former Olympian/reality TV star Caitlyn Jenner, and (like last time) billboard star Angelyne.

I left California in 2003, but some things never change.

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“Newsom sues elections chief to call himself a Democrat on recall ballot”

Politico:

Gov. Gavin Newsom is suing his own appointed elections chief to get two words next to his name on the recall ballot: Democratic Party.

The governor and his staff overlooked paperwork last year that would have allowed him to state his party preference on a recall ballot, according to a legal filing first reported Monday by Courthouse News. That apparent misstep means that Newsom would appear on the recall ballot without a party designation, while dozens of challengers will have their party preferences listed.

Newsom filed a lawsuit Monday against Secretary of State Shirley Weber in Sacramento Superior Court seeking to put his party preference on the ballot, based on the Courthouse News document. The Democratic governor nominated Weber to her post in December, replacing Alex Padilla, whom Newsom named to the U.S. Senate.

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