Aug. 11, 2021

By Erwin Chemerinsky and Aaron S. Edlin

Mr. Chemerinsky is the dean of the School of Law at the University of California, Berkeley, and the author of the forthcoming book “Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.” Mr. Edlin is a professor of law and of economics at Berkeley.

The most basic principles of democracy are that the candidate who gets the most votes is elected and that every voter gets an equal say in an election’s outcome. The California system for voting in a recall election violates these principles and should be declared unconstitutional.

Unless that happens, on Sept. 14, voters will be asked to cast a ballot on two questions: Should Gov. Gavin Newsom be recalled and removed from office? If so, which of the candidates on the ballot should replace him?

The first question is decided by a majority vote. If a majority favors recalling Mr. Newsom, he is removed from office. But the latter question is decided by a plurality, and whichever candidate gets the most votes, even if it is much less than a majority, becomes the next governor. Critically, Mr. Newsom is not on the ballot for the second question.

By conducting the recall election in this way, Mr. Newsom can receive far more votes than any other candidate but still be removed from office. Many focus on how unfair this structure is to the governor, but consider instead how unfair it is to the voters who support him.

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Imagine that 10 million people vote in the recall election and 5,000,001 vote to remove Mr. Newsom, while 4,999,999 vote to keep him in office. He will then be removed and the new governor will be whichever candidate gets the most votes on the second question. In a recent poll, the talk show host Larry Elder was leading with 18 percent among the nearly 50 candidates on the ballot. With 10 million people voting, Mr. Elder would receive the votes of 1.8 million people. Mr. Newsom would have the support of almost three times as many voters, but Mr. Elder would become the governor.

That scenario is not a wild hypothetical. Based on virtually every opinion poll, Mr. Newsom seems likely to have more votes to keep him in office than any other candidate will receive to replace him. But he may well lose the first question on the recall, effectively disenfranchising his supporters on the second question.

This is not just nonsensical and undemocratic. It is unconstitutional. It violates a core constitutional principle that has been followed for over 60 years: Every voter should have an equal ability to influence the outcome of the election.

The Supreme Court articulated this principle in two 1964 cases, Wesberry v. Sanders and Reynolds v. Sims. At the time, in many states, there were great disparities in the size of electoral districts. One district for a state legislative or a congressional seat might have 50,000 people and another 250,000. Those in the latter district obviously had less influence in choosing their representative.

In Wesberry, the court held that congressional districts of widely varying size are unconstitutional because they are akin to giving one citizen more votes than another, denying citizens equal protection as a result. The court extended that reasoning later that year to state legislatures in Reynolds. Today the one-person one-vote principle requires roughly equal-size districts for every legislative body — the House of Representatives, state legislatures, City Councils, school boards — except for the United States Senate, where the Constitution mandates two senators per state.

After Chief Justice Earl Warren retired in 1968, he remarked that of all the cases decided during his time on the court, the one-person one-vote rulings were the most important because they protected such a fundamental aspect of the democratic process.

The California recall election, as structured, violates that fundamental principle. If Mr. Newsom is favored by a plurality of the voters, but someone else is elected, then his voters are denied equal protection. Their votes have less influence in determining the outcome of the election.

This should not be a close constitutional question. It is true that federal courts generally are reluctant to get involved in elections. But the Supreme Court has been emphatic that it is the role of the judiciary to protect the democratic process and the principle of one-person one-vote.

This issue was not raised in 2003 before the last recall, when Gray Davis was removed from office after receiving support from 44.6 percent of the voters. But his successor, Arnold Schwarzenegger, was elected to replace him with 48.5 percent of the vote. So Mr. Schwarzenegger was properly elected.

This time, we hope that a state or federal lawsuit will be brought challenging the recall election. 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.

A court might not want to get involved until after the election, hoping that as in the last recall election, Mr. Newsom will not end up being replaced by a less popular candidate. But that would be unwise. Undoing an unconstitutional election after the fact would be considerably messier than fixing the process beforehand.

The stakes for California are enormous, not only for who guides us through our current crises — from the pandemic to drought, wildfires and homelessness — but also for how we choose future governors. The Constitution simply does not permit replacing a governor with a less popular candidate.

Erwin Chemerinsky is the dean of the School of Law at the University of California, Berkeley, and the author of the forthcoming book “Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.” Aaron S. Edlin is a professor of law and of economics at Berkeley.

(http://www.autoadmit.com/thread.php?thread_id=4897543&forum_id=2Elisa#42932619)

https://en.wikipedia.org/wiki/Erwin_Chemerinsky#/media/File:Berkeley_Law_Dean_Chemerinsky_on_Supreme_Court_DACA.jpg

(http://www.autoadmit.com/thread.php?thread_id=4897543&forum_id=2Elisa#42932629)

Source? I am a Polack

(http://www.autoadmit.com/thread.php?thread_id=4897543&forum_id=2Elisa#42936699)

https://en.wikipedia.org/wiki/Erwin_Chemerinsky

(http://www.autoadmit.com/thread.php?thread_id=4897543&forum_id=2Elisa#42933112)

They do. One person, one vote on removal. One person, one vote on the new governor.

What constitutional principle requires us to collapse two questions into one?

YOU LOSE, ERWIN.

He needs to stop writing these stupid editorial pieces.

(http://www.autoadmit.com/thread.php?thread_id=4897543&forum_id=2Elisa#42933227)

(http://www.autoadmit.com/thread.php?thread_id=4897543&forum_id=2Elisa#42934774)

Op-Ed: It’s not too late to stop California’s recall election

California Gov. Gavin Newsom

BY ERWIN CHEMERINSKY AND AARON EDLIN

AUG. 20, 2021 1:47 PM PT

With just weeks before the California recall election on Sept. 14, time is running out for a lawsuit to be brought to challenge the recall procedure. But it is not too late. Voters need to quickly bring a lawsuit, ideally directly in the California Supreme Court, where justices could declare unconstitutional the method of choosing a successor if the governor is recalled.

Article II, Section 15 of the California Constitution provides the procedure for the recall election. It says that if “the majority vote on the question is to recall, the officer is removed and, if there is a candidate, the candidate who receives a plurality is the successor.”

Opinion polls show that the vote is likely to be close on whether to recall Gov. Gavin Newsom and that if he is recalled, none of the candidates is likely to get more than 20% of the vote. The result is a virtual certainty that if Newsom is recalled, he will get far more votes — probably more than twice as many — as whoever would replace him. There easily could be a situation in which 49% of the voters want Newsom to remain, but because he is recalled, a successor who garnered less than 20% of the votes would replace him.

This makes no sense and violates the most basic notions of democracy. Far more people want Newsom to be governor than want any of the 46 candidates on the ballot to replace him. The U.S. Supreme Court long has held that equal protection requires that every voter get an equal say in determining the results of an election. Under California’s recall system, the votes of those who choose the new governor are given two or three times the weight of the votes of those who wanted Newsom to remain in office. This violates the long-established constitutional principle of “one person, one vote.”

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The recall ballot accomplishes in two steps what would be patently unconstitutional and unacceptable in one. Weighting votes of Newsom opponents more than his supporters would never be constitutional in a single ballot question in which all candidates were pitted against each other. And the U.S. Supreme Court has made clear that if an election process is unconstitutionally skewed, it cannot simply be restructured to accomplish the same result.

Some might disagree with this analysis by saying that it is two different elections, one on whether to recall Newsom and the other on who should succeed him, and that it is inappropriate to compare the vote totals. This ignores that it is one ballot, and the reality is that in this election, the candidate preferred by the most voters could well lose to one favored by far fewer. It also ignores the fact that the arguments against Newsom do not allege wrongful disqualifying conduct, but rather amount to political disagreements and questions about who voters favor as governor.

Although the case can be brought in federal court, it likely would be better at this stage to file it directly in the California Supreme Court. There are many reasons for this. California law is much more permissive than federal law in terms of who has standing to sue, the ability to bring a case to court. Any California voter ought to be able to bring this suit in a California court, because all of the state’s voters are affected by the unconstitutional process.

State courts are also a better route because the U.S. Supreme Court repeatedly has stressed, including just a year ago, that federal courts should not get involved in election processes just before the vote. No such principle exists in the California courts.

Finally, at this late date, the state needs a quick, definitive resolution, which the California Supreme Court could provide. Any lawsuit in federal court would inevitably entail appeals, which would be difficult to complete before the recall election.

Even though the lawsuit would be based on the U.S. Constitution, the California Supreme Court has jurisdiction to hear it and could provide necessary relief. State courts always have the authority to decide federal law claims. At this stage, the easiest solution is for the California Supreme Court to allow the recall election to go forward, but hold that if Newsom is recalled, the lieutenant governor will then become governor until the expiration of Newsom’s term in January 2023. This is not radical, because in all other situations, the lieutenant governor takes over when the governor leaves office before the end of a term.

Why hasn’t anyone filed this suit yet? Perhaps it reflects that people are slow to realize that there is a real chance that Newsom will be recalled and one of the 46 on the ballot could replace him. Or maybe the thought is that it would be better to wait and bring the challenge if Newsom is recalled. But that is a dangerous gamble because a court probably will be more reluctant to invalidate the results of the election after it occurs.

The far preferable solution is to resolve this now and for the California Supreme Court to hold that the procedures specified by the California Constitution violate the equal protection clause of the 14th Amendment to the U.S. Constitution. We should not risk allowing a candidate preferred by a small minority of Californians to be the next governor.

Erwin Chemerinsky is dean of the UC Berkeley School of Law and a contributing writer to Opinion. Aaron Edlin is a professor of law and economics at UC Berkeley.

(http://www.autoadmit.com/thread.php?thread_id=4897543&forum_id=2Elisa#42983538)

The latest absurdity comes from UC-Berkeley professors Erwin Chemerinsky and Aaron Edlin. They've offered a novel argument for why this type of election, which is embedded in the state Constitution, is unconstitutional. They're concerned that the winning candidate might end up with fewer votes than the "no" side on the recall question.

"The most basic principles of democracy are that the candidate who gets the most votes is elected and that every voter gets an equal say in an election's outcome" they argued in a New York Times op-ed. "The California system for voting in a recall election violates these principles and should be declared unconstitutional."

That's a fascinating legalistic theory, but simply is a contortion that would gut the state's direct democracy in service to short-term political preferences. As Johnson noted in his first inaugural address, "The opponents of direct legislation and the recall, however they may phrase their opposition, in reality believe the people cannot be trusted."

Progressives apparently no longer trust the people they claim to represent. Conservatives—at least in some other states—aren't much better as they seek to rein in their initiative systems because they are yielding results (e.g., marijuana legalization) they dislike. That's an odd position for newfound champions of populism.

California voters often do the wrong thing, but I trust them to decide whether to recall their governor. But whatever you decide, base it on your views of Newsom's governance—not on bogus arguments about the illegitimacy or undemocratic nature of the state's recall process.

This column was first published in The Orange County Register.

(http://www.autoadmit.com/thread.php?thread_id=4897543&forum_id=2Elisa#42993358)