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:

Clark’s two federal constitutional challenges to California’s recall procedure are without merit. He first contends that the recall procedure violates the Fourteenth Amendment’s one-person, one-vote principle. See Evenwel v. Abbott, 578 U.S. 54, 59 (2016). In Clark’s view, voters who support the incumbent get to cast only one vote (they can vote “no” in response to the first question), whereas voters who favor the incumbent’s removal get to cast two votes (they can vote “yes” on question one and then choose their preferred successor on question two). Clark’s argument might have merit if voters who answered “no” in response to question one were barred from voting for a successor candidate on question two. But that is not the case. All voters have an equal right to answer “yes” or “no” in response to question one, and regardless of how they vote on that question, they may then choose to vote for a successor on question two from the list of candidates who qualified for the ballot. It is true that voters like Clark who wanted Governor Newsom to remain in office were not able to vote for him as a successor candidate on question two. The inability to do so, however, relates to the right to vote for a candidate of one’s choice (an issue we address below). As for the one-person, one-vote principle, no violation occurred because all voters enjoyed an equal right to vote on both questions, and all votes cast on each question were afforded equal weight.

Clark alternatively contends that California’s recall procedure violates the one-person, one-vote principle because an incumbent must receive a majority vote in his or her favor on question one to remain in office, whereas a successor may be elected with a mere plurality of the vote on question two. Although Clark frames this as a “dilution” of the votes cast by those who answered “no” on question one, his framing is mistaken. California’s recall procedure in effect permits two separate elections to be conducted simultaneously. The first election determines whether the incumbent will be removed from office; the second determines who the incumbent’s successor will be. Every vote is weighted equally in each election, and the right to equal representation is not violated simply because the two elections require different vote thresholds or because one election is decided by a plurality vote. See Rodriguez v. Newsom, 974 F.3d 998, 1004–05 (9th Cir. 2020) (rejecting a federal constitutional challenge to California’s use of a plurality vote to select the slate of electors for President).

Clark’s second constitutional challenge asserts a violation of his right to vote for the candidate of his choice, predicated on the fact that Article II, § 15(c) prohibited Governor Newsom from appearing as a successor candidate on question two of the recall ballot. Clark contends that this prohibition constitutes a severe restriction on his right to vote for which California lacks a sufficiently compelling justification. See Burdick v. Takushi, 504 U.S. 428, 434 (1992). We find no merit in this argument either.

Under controlling precedent, § 15(c)’s prohibition does not constitute a severe restriction on the right to vote. Most on point is our decision in Bates v. Jones, 131 F.3d 843 (9th Cir. 1997) (en banc), which upheld California’s imposition of lifetime term limits on state officials. The plaintiffs in that case argued, as Clark does here, that the law unconstitutionally impinged on their right to vote for the candidate of their choice. Id. at 847. We rejected that argument, holding that term limits did not amount to a severe restriction on the right to vote because they were “a neutral candidacy qualification, such as age or residence” and made “no distinction on the basis of the content of protected expression, party affiliation, or inherently arbitrary factors such as race, religion, or gender.” Id.

The restriction challenged here imposes no greater burden on the right to vote than the term limits at issue in Bates. Like term limits, § 15(c) imposes a neutral restriction on voting that applies across the lines of political affiliation, race, religion, and gender. And like term limits, § 15(c) takes only one candidate option off the table for voters, leaving them with many other options. In fact, § 15(c) is arguably less burdensome than term limits because it bars an incumbent from running in just one election while term limits sideline a candidate for good. Together, § 15(c)’s neutrality and relatively minor impact on voters’ ability to make themselves heard render it a non-severe burden on voting.

Because § 15(c) imposes only a non-severe burden on the right to vote, it is constitutionally valid so long as California establishes that it serves an important government interest.

I’m glad the state qualification rule received important attention, as I blogged about that basis earlier.

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