Over the last month or so I have written (with co-author Evan Caminker of the University of Michigan Law School) two essays for this website (they are viewable here and here) explaining why a theory advanced in recent opinion pieces by esteemed Berkeley Law professors Erwin Chemerinsky and Aaron Edlin—arguing that the California gubernatorial recall procedures (specifically the inability of a recalled governor to run as his own immediate successor) violate the Equal Protection Clause of the Fourteenth Amendment (and in particular its so-called one-person, one-vote requirement)—was, on the merits, neither new nor plausible. (My two-part series with Caminker includes links to the Chemerinsky/Edlin essays to which we were reacting.) As Caminker and I observed in our most recent column, a lawsuit was filed in federal trial court by plaintiff voters seeking to block or alter the upcoming recall election for Governor Gavin Newsom (scheduled for next Tuesday, September 14). The plaintiffs invoked equal protection and the one-person, one-vote doctrine (although did so in a less clear and sophisticated way than Chemerinsky and Edlin do), but the district court judge denied preliminary injunctive relief, essentially embracing the view Caminker and I had articulated and finding 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 because Newsom’s exclusion from the replacement election “makes sense” as a reasonable ballot-access regulation.
Two days ago, a panel of the Ninth Circuit denied the plaintiff’s emergency petition for a writ of mandamus, essentially guaranteeing (absent some unfathomable eleventh-hour intervention by the entire Ninth Circuit or the Supreme Court or a state court) that the election will go forward next week as planned. While the Ninth Circuit did not issue a detailed opinion, and did not explicitly rule on the merits of the one-person, one-vote argument, it did find that “Appellant has not shown that the challenged [district court] order [which, it should be remembered, found a zero chance of success on the merits] is clearly erroneous as a matter of law.”
The Ninth Circuit did schedule additional briefing to be filed after the election in late September, which theoretically holds open the possibility of a post-election judicial remedy or at least a judicial declaration about the merits of the plaintiffs’ claim that could be relevant for future contests, but it seems exceedingly unlikely any court will embrace the one-person, one-vote attack.
I should note here that the late timing of the federal court challenge independently should have doomed it. At least as early as July 1, it was clear that a recall election was going to be held on September 14, and that Newsom would not be eligible to be considered to succeed himself should the voters choose to recall him. And yet suit contesting this set-up was not filed until mid-August, only a month before the election and after voters had already received and begun to return recall ballots. This delay, which has no obvious excuse, imposed prejudice to the state of California, its voters, and the courts being asked to decide complicated constitutional questions on an unnecessarily compressed timeline. (We all remember how a tight timeline affected the quality of judicial work product in complicated election matters in Bush v. Gore two decades ago.)
Moreover, one of the judicial remedies suggested by Chemerinsky and Edlin—namely, judicial disregard of the successor-election part of the recall ballot, which under state law governing vacancies would mean by default that the Lieutenant Governor (LG) would succeed Newsom should he lose on the recall vote itself—was deeply problematic, for at least two reasons. First and fundamentally, it would negate the clear decision of Californians, when they inserted the recall device into their constitution in 1911, to have vacancies created by gubernatorial recall to be filled by immediate election rather than by LG succession. This 1911 decision (explicitly affirmed by the California Supreme Court as a matter of state constitutional interpretation in 2003) may be unwise (see below), but it is not independently unconstitutional, and thus cannot simply be ignored by a court. Indeed, if the nub of the one-person, one-vote challenge to California’s recall procedures is that someone could become governor who enjoys less electoral support for the office of governor than Gavin Newsom, wouldn’t it be odd that someone who got zero votes to be governor (the LG) would be vaulted into the office by virtue of the equal protection theory?
Second, because some voters had already turned in ballots, a court couldn’t easily credit the results on the first part of the recall ballot (the up-down vote on Newsom) and not count or credit the votes on the second (successor) part of the ballot, for the simple reason that people may have voted to recall or preserve Newsom on the first part only because they expected a certain result on the second part. Had they known the second part would be disregarded entirely, they may well have voted differently on the first part.
To sum up, it is now pretty clear that courts aren’t going to insert themselves, either before or after the election, into the California gubernatorial recall process. But that doesn’t mean the process shouldn’t be reformed. Indeed, it should. For example, to say that it would be inappropriate for a court to simply excise the results of the second part of the recall ballot and confer the governorship upon the LG in the event Mr. Newsom is recalled is not at all to suggest that LG succession in the event of a recall-created vacancy would be a bad policy. The LG does assume the governor’s office in California if a gubernatorial vacancy is created by impeachment, resignation, death or disability. So from a policy standpoint, it is not clear why recall-created vacancies should be treated differently, even as it is clear from the 1911 amendments to the state constitution that LG succession was not allowed for gubernatorial recall (as the California Supreme Court rightly held in 2003). So any changes here would require a state constitutional amendment. But given that the stagnation we see in Congress does not necessarily plague the California legislature (likely because one party, the Democrats, control a supermajority of each house), the legislature could conceivably offer such an amendment for the voters of the state to ratify, which is one way amendments can be enacted in the Golden State.
And while they are at it, constitutional reformers might at least consider several other possible amendments, including: (1) having the LG and governor elected as a ticket in the first place (which makes LG succession more plausible in recall cases, where the problem with the recalled governor may not involve the LG at all); (2) increasing the signature threshold for triggering a recall election (which, at 12% of the number of voters in the last election, is the lowest in the country and well below the national norm of about 25%); (3) adding constitutional language to make clear that recalls are supposed to be reserved for serious misconduct and not to be used as “do-over” elections; and (4) perhaps (assuming no LG succession in recall cases is adopted) even having the recall vote and the replacement election on separate days so as to increase successor-election turnout and also to allow the political parties to better absorb the results of a successful recall before deciding whom to support as a successor. This last suggestion of two separate election dates might of course increase expense, but the costs may well be money well spent.
Other changes, such as making it less easy to qualify for the second part of the ballot (which would reduce the number of candidates and potentially increase ultimate support for the winning candidate) do not even require a constitutional amendment but could be brought about through statute or even executive action by the State Secretary of State.
Any of these changes might smartly include a deferred implementation date, so as to deflect any concerns that they might be motivated by partisanship, even though these reform possibilities would not seem on their face to be partisan. Relatedly, even though the specifics of a reform package need to be worked out, legislative leaders in California should proclaim publicly on Monday of next week, before anyone knows the fate of Gavin Newsom or his would-be successors, that a significant set of reforms will be forthcoming, so as to minimize the perception that reformers want to make changes only if their candidate loses under the current rules.