Is the California recall election unconstitutional? A new lawsuit makes the case

With the recall election of Gov. Gavin Newsom less than 30 days away, two California voters are taking the state to federal court in an attempt to block the election from happening.

The plaintiffs, Rex Julian Beaber and A.W. Clark, allege that the 2021 recall election is unconstitutional.

When California voters get their recall ballot, they will have two questions to answer: Should Gov. Newsom be recalled from office and, if so, who should replace him? Newsom’s name does not appear on the list of possible replacements.

Beaber and Clark, through their Venice Beach-based attorneys Stephen Yagman and Joseph Reichmann, argue that means supporters of Newsom get just one vote, whether he should be recalled. By contrast, they say opponents of Newsom get two votes, whether he should be recalled and who should replace him.

“This process is violative of the Equal Protection and Due Process Clauses of the Constitution’s Fourteenth Amendment, because it flies in the face of the federal legal principle of ‘one person, one vote,’ and gives to voters who vote to recall the Governor two votes — one to remove him and one to select a successor, but limits to only one vote the franchise of those who vote to retain him and that he not be recalled, so that a person who votes for recall has twice as many votes as a person who votes against recall. This is unconstitutional both on its face and as applied,” the attorneys wrote in a motion submitted to the U.S. District Court for the Central District of California, which is located in Los Angeles.

Beaber is an attorney based out of Los Angeles.

The legal challenge comes on the heels of a New York Times op-ed by Erwin Chemerinsky, dean of the UC Berkeley School of Law, and Aaron Edlin, a professor of law and economics at Berkeley, who advanced the same argument and pointed out that Newsom’s successor could be elected with just a fraction of the vote.

“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,” they wrote.

The legal challenge names Secretary of State Shirley Weber, in her official capacity, as the defendant, and Weber’s office has yet to respond with a legal filing of their own.

Beaber and Clark seek to block the election from happening entirely. Failing that, they call on the U.S. District Court to delay the election “so that were it to be held it would need to include Governor Newsom’s name as a potential candidate for governor, were question 1 to receive a majority of votes and pass.”