Two California Voters File Suit, Claiming the Recall Election Is Unconstitutional

The plaintiffs in the case either want the election called off or the rules changed

A pair of voters have filed suit in the U.S. District Court for the Central District of California, claiming the September 14 recall election is unconstitutional, and suggesting that the legal remedy is to add Governor Gavin Newsom’s name to the list of 46 candidates who hope to replace him or to simply call the whole thing off.

In the complaint, plaintiffs Rex Julian Beaber and A.W. Clark argue that California’s recall law violates the equal protection clause of the Constitution because it allows a sitting Governor to be ousted by a candidate who receives fewer votes, the Sacramento Bee reports.

At issue is the two-question recall ballot, which first asks voters to choose “Yes” or “No” on whether Newsom should be recalled, and then asks which of nearly four dozen candidates should replace him if more than 50 percent of voters say “Yes” to Question One. This could lead to a candidate winning with only small fraction of the vote—for instance when YouTube Democrat Kevin Paffrath and talk show Republican Larry Elder led the squad of hopefuls with 27 and 23 percent of the tally in a recent poll.

Beaber and Clark are asking the court to issue an order prohibiting the recall or to toss Newsom’s name on the contender pile, despite the fact that millions of ballots were sent out last week, with many of them already in the hands of L.A. voters.

Erwin Chemerinsky, dean of the University of California’s Berkeley School of Law, and Berkeley law professor Aaron S. Edlin addressed the scenario in an August 11 New York Times op-ed piece, stating, “The court could declare the recall election procedure unconstitutional and leave it to California to devise a constitutional alternative. Or it could simply add Mr. Newsom’s name on the ballot to the list of those running to replace him. That simple change would treat his supporters equally to others and ensure that if he gets more votes than any other candidate, he will stay in office.”

But Vikram David Amar, dean of the University of Illinois College of Law, and University of Michigan Law School professor Evan Caminker, beg to differ.

Amar and Caminker tell The Center Square that their fellow scholars “are wrong on both counts: we see no voting inequality concern of constitutional magnitude here, and the argument they advance was indeed raised by the incumbent Governor), refuted, and rejected during the Gray Davis recall contest.”

They add that the anti-recall argument falls apart due to its proponents’ “unarticulated and undefended characterization of the two parts of the recall ballot as constituting a single election in which voters are being asked whom, out of the entire field of wannabe governors including Gavin Newsom, they prefer. Yet the recall vote is no such thing. It is two separate voter decisions—that simply (and for efficiency’s sake) are being conducted by means of a single ballot.”

Plaintiff Beaber, an L.A. lawyer and psychologist, declined to say if he’s a Democrat, telling Politico that “it would be unfortunate if party politics was the driving force behind the consideration of this lawsuit. This lawsuit seeks on its face to declare a current California remedy as unconstitutional and it would apply regardless of whether it was a Democrat or a Republican already in office.”

Stay on top of the latest in L.A. news, food, and culture. Sign up for our newsletters today.