Erwin Chemerinsky, dean of the UC Berkeley School of Law, sees the California recall the same way I do:
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.
My recommendation has been for the Democratic party to endorse one of the alternatives, while also campaigning vigorously against the recall. But, per Chemerinsky, in yesterday’s LA Times:
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.
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.
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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.
It’s time for the California Democratic Party to get a clue. Otherwise, there’s a significant chance that Larry Elder will become California’s governor, just as Arnold Schwarzenegger did.
