Continuing The Conversation Over the Constitutionality of California’s Recall Mechanism: Why We Are More Convinced Than Ever Before That Equal Protection Challenges to It Lack Merit

Posted in: Constitutional Law

This essay extends our virtual conversation with Berkeley Law’s Dean Erwin Chemerinsky and Professor Aaron Edlin about the constitutionality of California’s procedures governing the upcoming recall election for Governor Gavin Newsom. Chemerinsky and Edlin initially argued in the New York Times that California’s electoral process violates “a central principle of democracy—the one-person, one-vote principle.”

After we expressed our disagreement in a column on this site because we believe Chemerinsky and Edlin ask the wrong question, they responded, first implicitly in the Los Angeles Times and then again explicitly here on Verdict. We appreciate their engagement with us, but we remain unmoved by their arguments and counterarguments. In our view, California’s recall process permissibly excludes a recalled incumbent from immediately trying to replace herself, and this works no equal protection or other constitutional violation.

The core of Chemerinsky’s and Edlin’s argument centers on California’s voting rules for each of the two parts of its recall procedures. Newsom needs to win the support of 50% of voters on the recall question to remain governor, whereas (should Newsom not meet that threshold) the subsequent replacement question is determined by a simple plurality and therefore any of the 46 or so candidates to succeed him on the second part of the recall ballot could be elected with far less than 50% support (indeed, the latest polls show the leading replacement candidate garnering just around 20% support, even though this number could of course increase as election day approaches). Viewing these procedures as asking the single question who should be the next governor, Chemerinsky and Edlin claim Newsom and his supporters are being treated unconstitutionally in that there will likely be more votes supporting Newsom than those supporting anyone else, and yet Newsom could be ousted. Chemerinsky and Edlin argue that this unequal (to their mind) weighting of votes violates the teachings of the Supreme Court cases from the 1960s and beyond disallowing malapportioned (or unequal sized) legislative districts. They correctly note that even though Governor Gray Davis unsuccessfully raised a one-person, one-vote claim among others in 2003 before being recalled, the state high court denied review without setting any precedent on the merits. (By saying in our earlier post that the court had “denied relief” we did not intend to suggest otherwise, but meant only to make clear that the Chemerinsky/Edlin theory is not new and had been discussed but not embraced 18 years ago.)

Perhaps following Chemerinsky’s and Edlin’s exhortations, an eligible voter recently did sue to raise a one-person-one-vote claim in federal district court. Late last week the court denied the plaintiff’s request for a preliminary injunction, agreeing with our view that “there is no chance Plaintiff could prevail on the merits” because the recall procedures “do[ ] not violate the one person, one vote doctrine” and Newsom’s exclusion from the replacement election “makes sense” as a reasonable ballot-access regulation. (The district court also held that “all the other equitable factors are against issuing a preliminary injunction,” primarily because the election has already started through early voting.) We may offer thoughts on that litigation as it develops on appeal. But for now we want to explain more fully why we think the argument Chemerinsky and Edlin advance is misguided, and indeed why our convictions to that effect have grown stronger.

As we noted in our previous essay (and as the district court agreed), their analysis misframes the key constitutional issue because the California recall process, properly viewed, contingently holds two distinct elections. The first election determines whether the incumbent is recalled, and by itself it meets all one-person-one-vote rules (every eligible voter can vote once for either outcome). If and only if the recall vote succeeds, the second election then determines who among the eligible candidates will become the next governor, and this election too by itself meets all one-person-one-vote rules (every eligible voter can vote once for any eligible candidate). Importantly, the California Constitution’s Article II, § 15(c) says the recalled officer is not eligible to run in the second election, which raises a straightforward ballot-disqualification question rather than a one-person-one-vote question.

While the ballot-disqualification question might be subject to some discussion, we think it’s pretty clear that Article II, §15(c)’s ballot disqualification does satisfy the Constitution because California has reasonable, non-partisan, non-entrenching, and non-discriminatory justifications for excluding a just-recalled incumbent, including promoting harmony and stability for the State and ensuring the State survives intact whatever crisis brought on the recall. And Article II, §15(c)’s restriction merely precludes the incumbent from re-running right away; Newsom could in any event run again for governor in the 2022 general election or a later one. Applying a general balancing test (comparing state interests to candidate and voter burdens) developed in Anderson v. Celebrezze and Burdick v. Takushi, the Supreme and other courts have upheld many other reasonable, non-partisan, and non-discriminatory ballot disqualification rules. These include term limits, felon exclusions, citizenship requirements, voter-registration requirements (each of these four also governs California’s replacement election in addition to the recalled-officer exclusion), as well as age requirements, residency requirements, sore-loser laws, and impeachment-triggered bars on future office-holding. For example, California’s lifetime state legislative term limit rules withstood federal constitutional challenge in both the California Supreme Court and in a Ninth Circuit en banc case.

Throughout these cases courts have consistently rejected the proposition that a voter has a fundamental right to vote for whomever she pleases, rather than only those candidates who qualify according to otherwise-constitutional criteria. And how could it be otherwise? President Barack Obama’s supporters might well have outnumbered Donald Trump’s supporters in 2020, but would-be Obama voters were not deprived of their right to have votes counted equally, for the simple and compelling reason that Obama was permissibly disqualified from being elected for a third presidential term. The two parts of the California recall ballot thus pose two distinct questions; and just as Gavin Newsom is permissibly excluded from the second part, so too all the would-be successors are permissibly excluded from the first part, which is a straight up/down vote on recalling the incumbent. (Indeed, we pointed out last time that, tellingly, no one is arguing that equal protection is violated because would-be successors cannot compete head-to-head with Newsom on the first part of the ballot.)

All of this explains why invoking the malapportionment cases, while creative, misidentifies the line of cases applicable to the present question. The one-person, one-vote rulings were tremendously important for sure, but they were addressed to a very different set of questions from those implicated by California’s recall mechanism. They involved geographic discrimination (not present here), racially disparate impact (not implicated by the way California has structured its recall procedures) and, most importantly a device by which a minority could, to use Justice Potter Stewart’s words, “permit the systematic frustration of the will of a majority of the electorate of the State”—which is a hallmark of the republican form of government guaranteed by the U.S. Constitution. If malapportionment is permitted, there is no logical stopping point to prevent a small minority from entrenching itself and overriding the will of the majority in perpetuity. By contrast, if the people of California remove Gavin Newsom, it will be only because a majority of voters choose to do so on election day, even as that majority also appreciates when it acts on Part One of the ballot that it cannot be sure of who will replace him on Part Two. And, of course, a majority of the California electorate can in any event amend the state constitution relatively easily to change the recall procedures if it so desires. For these reasons, there is no potential for “systematic frustration of the will of the majority” in the recall procedures, and the proper frame for analyzing the dispute is not malapportionment but instead, as we have explained, ballot disqualification of a recalled governor. Given that term limits (and many other rational eligibility criteria that are nonpartisan and race- and gender-neutral, and that do not work to entrench incumbents) are within a state’s prerogatives to adopt, we think California’s regime, while not as we might have structured it, is clearly constitutionally permissible.

In their most recent Verdict counterpoint, Chemerinsky and Edlin seem to concede that if we are right to view the recall as two separate questions, their equal protection claim fails. But they reject our characterization of the recall mechanism as involving two decisions: “[Amar and Caminker] want to treat each question on the ballot as a separate election and don’t want to compare the votes between the two questions on the ballots. That is a plausible way of thinking of it, but we think it ignores that it is one ballot to decide who among all of the candidates, including Newsom, should be the governor.”

With respect, we firmly believe that characterizing the recall as “one ballot to decide who, among all of the candidates, including Newsom, should be governor” is factually and legally wrong, and may be irrelevant in any event.

That California’s recall is a two-step process is made crystal clear by the voting materials. The Secretary of State’s website proclaims that “[t]he September 14, 2021, California Gubernatorial Recall Election ballot will have two parts” and “[t]he recall ballot will ask two questions: 1) do you want to recall Governor Newsom? and 2) If the governor is recalled, who do you want to replace him?” The voters are clearly informed that their votes on the second question of replacement come into play only if a majority decides to recall Newsom on the first question.

Moreover, each voter may vote on both questions or either question alone. The Secretary of State’s website and voter information pamphlet sent to all voters, and at least one already-mailed ballot that we examined, make plain that voters “may vote on the recall question regardless of whether [they] vote for a successor candidate” and that voters “may vote for a successor candidate regardless of whether or how [they] vote on the recall question.” Voters, whose interests Chemerinsky and Edlin seek to vindicate, should get the message.

In addition, state law applies different campaign finance rules to each of the two electoral decisions. As explained here by the California Fair Political Practices Commission, a bipartisan and independent agency governing California elections:

Recall elections are unique because they have both the characteristics of a ballot measure and a candidate election. Most recalls have two distinct parts . . . . The first part is the actual recall, and . . . state law treats recall elections as ballot measures, the “issue” being whether the officeholder should be recalled. In contrast, the second part on the ballot is a candidate election, the question being who shall be elected to the vacant office. Because different rules sometimes apply between the two types of elections, the answers to questions about conduct related to ‘the recall’ depend on which part of the election is involved.

Most significantly for present purposes, conventional contribution and expenditure limits apply to candidates in replacement elections but do not apply to people supporting or defeating ballot measures. This means, for example, Newsom can raise unlimited sums to fend off his recall (including through individual mega-donations) while his rivals, unless they are self-funding, face a $32,400-per-election limit on individual contributions.

Chemerinsky and Edlin claim that our two-part characterization of the recall process “ignores that it is one ballot to decide” who should be governor. We do not ignore the fact that—for obvious reasons of cost-savings and speed—California chooses to ask two sequential questions on a single ballot. We just think that fact is beside the point because it in no way addresses whether, for relevant constitutional purposes, the sequential questions ought to be viewed as effectuating one election or two. Like all states of which we are aware, California typically asks voters to choose candidates for many different offices and to pass or reject many different measures on a single ballot at a single time; no one ever argues that those elections are somehow interconnected for equal protection purposes. And looking just at special recall elections by themselves, California law permits recall proposals for multiple state and/or local offices to appear on a single ballot. Moreover, depending on when a recall petition is certified, state law provides that the recall election might be “held on the same day, and consolidated with, the regular or special election.” Given all of this, we remain steadfast in our view that California’s recall mechanism can be reasonably viewed only as two separate electoral decisions that happen to be rendered on the same day and same sheet of paper.

Finally, federal court precedent endorses our two-election characterization. In addressing other voting rules in California, a district court and the Ninth Circuit (in separate cases) both rejected the “contention that the recall and the successor election are in fact the same process” and instead embraced the view “that the recall election presents two and distinct questions to be voted on.”

And if there is any remaining uncertainty about this, surely so-called Ashwander avoidance principles should counsel courts to construe state law in the plausible manner that avoids triggering the equal protection concern.

So we think there is little doubt that courts should and will view the California recall measure as involving two separate questions, and if Newsom loses on the first one, the only issue becomes whether (as we think is true) he can be made ineligible to be considered on the second question.

But let’s assume arguendo that Chemerinsky and Edlin are correct that California’s recall procedures should be viewed as asking the single question of who should be the governor going forward. What then? Chemerinsky and Edlin simply assert that, as such, California’s requirement that Newsom receive 50% of the vote to remain governor whereas (failing that) all other candidates need only a potentially quite paltry plurality violates the Reynolds v. Sims one-person-one-vote principle: “Weighting votes of Newsom opponents more than his supporters would never be constitutional in a single ballot question where all candidates were on the ballot.” We think the issue is more complicated.

For starters, the assumption that California’s voting protocol clearly disadvantages Newsom is too quick. As noted above, the first part of the ballot excludes would-be successors, and this structure might actually advantage the incumbent by offering her alone a “safe harbor”; she can retain office with 50% of the vote even if some of the replacement candidates are significantly more popular. People might vote against her recall not because they necessarily support her whole-heartedly but for many other reasons—they might dislike recalls on policy grounds, or they may fear setting a precedent that will come back to haunt their favorite governor in the future, or they may greatly prefer replacement candidate A but don’t want to risk that disfavored replacement candidate B might win instead. The separation of the recall and replacement questions could possibly help rather than hinder the incumbent. (And remember that California’s current campaign finance laws also advantage a candidate facing recall versus facing a general election.)

Moreover, the asserted mathematical disadvantage—that Newsom might lose the governorship despite 49+% support in the recall election and someone else might take office with, say, a 20% plurality in the replacement election—does not itself demonstrate unfairness because it compares answers to two different questions; the 49+% and 20% figures are apples and oranges. The replacement candidate’s 20% plurality against 45 (non-incumbent) competitors doesn’t tell us how she would fare if she faced Newsom head-to-head; perhaps all of Newsom’s detractors would unite behind this replacement candidate. Or to put the point differently, if the replacement election were governed by instant-runoff voting rather than a mere plurality threshold, then the winning replacement candidate would end up securing over 50% of the total replacement vote, by definition exceeding Newsom’s maximum support of 49+% and eliminating the apparent “unfairness” the current math assertedly reveals.

But the Chemerinsky/Edlin challenge does raise an interesting, and we think novel, question about the application of the one-person, one-vote principle to ballot-access questions in conventional candidate elections. Chemerinsky and Edlin take as given that “[w]eighting votes of Newsom opponents more than his supporters would never be constitutional in a single ballot question where all candidates were on the ballot.” We’re not so sure. Indeed, even if California’s recall ballot were structured differently—to involve a single question of who should be governor but to subject the incumbent to a higher threshold for success—it still may very well pass muster. Imagine a state said, when an incumbent governor runs in any election, she must face a headwind: perhaps she must garner 50% of the voters to be re-elected and, failing that, the leading vote-getter among the rest of the field becomes governor; or perhaps she must beat the closest competitor by 10% to win, etc. If a state can impose lifetime or temporary term limits and exclude incumbents from being considered altogether under the ballot-access balancing test described earlier, it is far from clear that the Constitution precludes a state from imposing some lighter headwind against an additional term by allowing incumbents to run but insisting on a high level of support for them to succeed. The interests in the balance (encouraging new competitors, trying the level the playing field given the advantages of incumbency, etc.) might be slightly different than in the case of straightforward term limits, but the balance might well be struck to permit these kinds of measures. In general, the Constitution allows states to structure their forms of government in any ways they choose that do not involve systematic frustration of majority will or run afoul of other constitutional values. As long as the anti-incumbency measures are nonpartisan, nondiscriminatory, and rational, they could very well survive the balancing test.

Finally, we should note that we have some questions/concerns about at least one of the judicial remedies that Chemerinksy and Edlin proffer: judicial disregard of Part Two of the recall, which under state law governing vacancies would mean by default that the Lieutenant Governor would succeed Newsom should he lose on Part One. We may return to and explore these questions after the Ninth Circuit resolves the pending appeal or after the California Supreme Court (if someone sues there) weighs in.

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