To build off Ned‘s post, and setting aside the major laches problem to this lawsuit, Vik Amar and Evan Caminker at Justia have a pretty thorough defense of California’s process, a process that disqualifies a recalled governor from seeking office for the replacement term. I’ll highlight (or restate?) a couple of points I made very briefly on Twitter earlier.
The California Constitution dictates, “The officer may not be a candidate.” Art. II, sec. 15(c). That is, upon a majority of voters recalling the officer, the officer is disqualified from seeking the remainder of the term. As a qualification for office (which Ned points out), we have many such rules. Term limits, age limits, resign-to-run laws, sore loser laws, and myriad other state qualifications rules. It can be a function of impeachment. And recall, in my judgment, seems similar.
Once a candidate is disqualified from seeking office, whether that happens on the same ballot or an earlier ballot, it’s not “one person, one vote.” The candidate is disqualified, whatever happens in some later event, no matter how many people might like that candidate (as one might well like a “sore loser” or an impeached candidate). Admittedly, it’s convenient to hold up the results of question 1 (the recall) against prospect of question 2 (the replacement). But the fact that it’s one election, in my judgment, tells us little about the qualifications question. (There’s some intriguing debate about the line between “ballot access” and “qualifications,” as state qualifications rules seem to receive more deference from the Court, as n.9 of Anderson v. Celebrezze (1983) indicates.)
The Supreme Court has also rejected analogizing “one person, one vote” to state qualifications or ballot access rules. Consider Bullock v. Carter (1972), a filing fees case: “. . . nor does [Texas] quantitatively dilute votes that have been cast [citations to Reynolds v. Sims & to Wesberry v. Sims]. Rather, the Texas system creates barriers to candidate access to the primary ballot . . . .”
But, my money is on a swift dismissal on laches, and the academic dialogue, I think, continues for the next recall….