California’s recall & replacement rules are a trainwreck waiting to happen, but are they unconstitutional?

As the voting is underway in the California gubernatorial recall election against Gavin Newsom, polls are showing it quite close. While the no-recall side leads, and objectively Newsom should be expected to prevail in such a strong Democratic Party-aligned state, it is far from a sure thing. In my earlier planting on this topic, I said that, “rather than learn the lessons of its irrelevance in this state, the California Republican Party has learned a different lesson. While it may not win state power the normal way, it can harness grievance, the possible low turnout of a special election, and a celebrity to pick off a Democratic governor now and then.”

As the campaign–such as it is–has developed since my writing those words in late April, it is clear that it is indeed all about grievance and hardly about governance. It is also still at risk of being a low turnout affair, which is where the threat to Newsom’s tenure rests. Will enough Democrats mail back their ballots marked NO, when all the enthusiasm is on the side of the terminally aggrieved?

What there is not in this contest is a celebrity on the replacement side of the ballot. Unless Larry Elder counts. He is leading the polls as the replacement candidate. (I had never heard of him till a month or so ago, and anecdotally, I sense that most folks who don’t listen to right-wing talk radio likewise did not know who he was. On the other hand, I certainly knew who Arnold Schwarzenegger was long before he ran for governor. So, no, Larry Elder does not count as a celebrity, at least not in a qualitatively meaningful sense.)

And therein lies the problem from a small-d democratic perspective: the rules of how California runs this type of election have always been a trainwreck waiting to happen, and such a train wreck of democracy just might happen this time. While the recall question on the ballot is a YES/NO option and thus will be decided by a majority of votes cast, the replacement option on the ballot has 46 candidates, and the winner will be the one with a plurality of votes, if the YES wins the first question. Elder leads polling by a wide margin, but with not even 25% of the vote. If we take his current polling level as a share of the decided vote, it is still only around 40%. Moreover, with no Democrat (or rather none with any hint of visibility) running on the replacement side, there are likely to be quite a few voters who vote NO but then do not select a replacement candidate. In other words, if Newsom loses a close contest, his replacement could be elected by significantly fewer votes than Newsom himself earned on the NO side. California now requires a majority for election of all other offices in the state in general elections (under the “top-two” rule), but a replacement special election is still decided by plurality (and with no party primaries).

This outcome–a sub-majority election of a candidate with less voter support than the recalled incumbent, and which can’t be discounted as fantasy–would be a massive miscarriage of democracy, whatever one’s opinion of Newsom (or Elder). But could be it also be unconstitutional? That is the claim made in the New York Times by Erwin Chemerinsky and Aaron S. Edlin. They build their case on US Supreme Court jurisprudence on one person, one vote. Two cases from 1964 (Wesberry v. Sanders and Reynolds v. Sims) concerned state legislative and congressional districts, ruling against malapportionment in these districting plans on the grounds that it denied voters equal influence on outcomes.

The claim of Chemerinsky and Edlin is that this logic can be extended to a gubernatorial recall and replacement, under the rules California uses: “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.”

While I agree with the principle, I am dubious it rises to a constitutional issue, even if we did not have a SCOTUS that was dominated by Republicans.

Please read their argument and tell me if I am wrong to be skeptical of the constitutional claim (independent of the likelihood of the Court actually offering redress if this is the outcome of the election).

25 thoughts on “California’s recall & replacement rules are a trainwreck waiting to happen, but are they unconstitutional?

  1. Pingback: There is a California National Party candidate in the gubernatorial replacement election | Fruits and Votes

  2. Prof. Chemerinsky is a prominent legal scholar but he is no originalist or textualist. As a result, his and Prof. Elder’s assertions about what the Constitution ought to prevent have zero chance of persuading any appellate judge in the U.S. In today’s courts, “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.” does not derive from original meaning or text in any way that our jurisprudence can recognize. Those who criticize originalism as a (rather thin) cover for conservative politics believe we are worse off than we would be if statements like Chemerinsky’s could function as constitutional law. But they can’t.

    I suspect that Prof. Chemerinksy knows this, and views himself as making a polemical point rather than a legal one.

  3. As I commented on the earlier planting, I agree the rules are a trainwreck but can’t find any way the Supreme Court (certainly not the present Supreme Court) would find them unconstitutional.

    However, it really does concern me that the California Democratic Party is so oblivious to institutions that they have had 15 years to reform the system which elected a Republican the last time and has failed to do so.

    • Exactly. One would think they could have figured out a way to fix this. Make it two rounds if RCV is off the table. Or include the incumbent on the replacement ballot. I know the latter could generate an odd situation by which the recall option “wins” yet the incumbent is reelected, but so what? The replacement should be required to be more popular than the incumbent being recalled. Or make it one question: here is a list of candidates seeking to be governor, including the incumbent–vote for him/her or vote for a challenger. Just like a regular election.

      • Or fill the vacancy in the same way that vacancies due to resignation or death — or impeachment by the legislature –are filled. In the case of governors, in most states that would mean the lieutenant governor takes over.

        I think this has two advantages. It treats recall as impeachment by the people, by analogy with impeachment by legislature. I think is a good way to look at it. And it reduces the incentive of the party out of power to use it as a do-over of the last general election (more on this below) rather than as a response to personal malfeasance in office.

        The more I think about this, the more I think the violation of democratic norms (although not a violation of the constitution) consists mostly of the fact that California’s procedure gives the party out of power excess leverage, and therefore an incentive to mount recall campaigns on little or no pretext. The party in power is stuck between a rock and a hard place. If they put up a qualified and plausible candidate to replace the recalled official (in 2003 that was Bustamonte), they risk increasing the odds that the recall will be successful. If they don’t put up a suitable replacement candidate (as in 2021), they risk handing the party out of power an undeserved win. This creates a significant imbalance in favor of the party out of power, which the Republicans are pretty good at exploiting.

        I think recall procedures should be designed to be about the individual office holder rather than about policy or party control of the government; we have regular general elections for that. And they should not provide a structural advantage to one side or the other. In this respect, California’s strange rule has something in common with gerrymandered district boundaries. I note in passing that partisan gerrymandering isn’t unconstitutional either.

      • Yes, replacement by the Lt. Gov. is an obvious default solution. Recall as “popular impeachment” makes a great deal of sense. And, given that the Lt. Gov. is elected separately from the Governor in California, no one could complain credibly that it’s just replacing the incumbent with a hand-picked team member of the Governor.

        And that is correct that the current process puts the incumbent’s party in a terrible strategic position and that it makes it too easy for the out party to use.

  4. It seems like a slightly faulty assumption made by the article that a No on recall automatically counts as an affirmative declaration of support for Newsom as, I suppose, their first preference. If I was a centrist Republican concerned about the prospect of Governor Larry Elder, for example, I might vote No on the recall and, say, Faulconer for Governor, whereas if this were a recall election in which there was no Yes-No question and Newsom ran as just another candidate I would vote Faulconer. I don’t know how common such a sentiment is, if there are many centrist Republicans in California who would do something like that, but it seems like a problem underlying this article (and, of course, a problem with this particular recall mechanism).

    • I think that is a fair point, and if a court would even hear a challenge and render an opinion on the constitutionality of the trainwreck scenario, I would expect it to use such an argument as a way to avoid overruling the outcome.

      Nonetheless, whatever the intention of a NO vote, it does in fact count as a declaration of support for Newsom, in that it is one more vote in favor of his staying in office.

    • If the Chemerinsky argument were to be run in any almost any other common law country, it would succeed. It would be a slam dunk before the constitutional court of South Africa and probably a fairly easy win before a court as conservative as the high court of Australia.

      • The US does have a very old and rigid constitution. However, as Chemerinsky argues in his book The case against the Supreme Court. The problem is not so much the provisions themselves, which are perfectly capable of being read as supporting fair elections, but that politicised courts consistently finds against that principle. He also noted that the Roberts court has never found in favour of the voters in a voting rights case. Had Biden’s electoral college margin come down to one state, instead of 6, it’s entirely possible the Roberts court would have persuaded itself to find in favour of the Big Lie. The Wisconsin Supreme Court came within 1 vote of doing exactly that.

    • I don’t think a court would throw out an election even if the rules are a wonky. It would be better to amend the state constitution to fix the recall provisions.

  5. It seems a stronger challenge would be under the California Constitution. I am no lawyer, but it seems that Section 15(c) contradicts Section 5(a).

    While Section 5(a), on recalls, does explicitly state that the replacement shall be elected by “plurality,” Section 15(c) says “A voter-nomination primary election shall be conducted to select the candidates for congressional and state elective offices in California.” It is not obvious to me that the provision in 15(c) overrides the seeming blanket provision that there need to be primaries in 5(a). Never mind that “top two” is not an actual primary; a further clause in 5(a) establishes the top-two provision. It could be that 5(a) is implicitly non-operational in recalls because its final clause–related to top two–refers to “the ensuing general election.” Even so, not having that initial round (“primary”) when there is a recall means that a state elective office is being filled contrary to what 5(a) says “shall” be the procedure for such offices.

    Could a court reasonably construe the contradiction as requiring a replacement to be conducted in two rounds, just like 5(a) seems to require for all elections to state elective office?

    • There is an ancient and arcane set of common law rules for resolving thus kind of conflict of provisions. In Australia the drafting manual issued by the Commonwealth parliamentary counsel, who drafts laws for government departments and backbench MPs, says if you want to write an exception to a more general provision, you should begin with words such as Despite Section 15(a). A separate part of the manual says to use modern words such as despite, not archaisms such as notwithstanding. It’s hard to predict how a US court would resolve this conflict under the common law rules.

      Constitution drafters should not be partying like it’s 1787.

      • “Notwithstanding”, archaic? How is it, that this can be so? For it was written into the Constitution of Canada [la Constitution du canada] as recently as 1982! Are you trying to tell me that Pierre Trudeau is not up to this very minute? And the same Queen who signed it is still on the throne.

      • As a matter of public legitimacy, careless drafting is something to beware. While courts can crunch two inconsistent provisions into a unified whole by falling back on canons of interpretation (Can one be construed as a general default presumption and the other as a specific exception to it? if not, later repeals earlier), and this will ensure legal certainty, it can undermine public confidence because the “literal” reading of a seemingly absolute provision, read in isolation, misled the lay reader as to what the legal outcome would be.
        This famously comes up regarding the US Constitution, when, as Garry Wills noted, gun rights enthusiasts read the Second Amendment in isolation as supporting armed rebellion against the government at the private judgment of aggrieved individuals – oblivious to another clause in the same document that defines treason as doing precisely that.
        It comes up in Australia regarding the Uniform Evidence Law, which I teach for a living, and which is drafted in a rather odd style so that, eg, section 102 states baldly “Credibility evidence about a witness is not admissible” http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ea199580/s102.html, even though later sections contain so many exceptions that this apparent road-block ends up as more of a low speed-bump. (This is not helped by the practice of the otherwise excellent AustLII service in presenting sections on individual web pages – students tend to open only the one with the section title they are looking for, and so miss the later qualifying sections. At least the Evidence Act does add notes about the latter, but not all Acts do this).
        It is also a problem with constitutional guarantees that are phrased in sweeping terms, even if these were understood by their drafters and by courts to be subject to obvious implied exceptions – especially the “not a suicide pact” exception, the proviso that all are bets are off when human lives are immediately endangered. The First Amendment in the USA (no, it does not entitle you to post death threats against your ex-wife online; go work through your issues in a menz shed instead) and, more recently, section 92 in Australia (protects you from discrimination for being an out-of-Stater but not your right to spread lethal germs).

      • Or reading the Second Amendment (as someone else, not Garry Wills, said) as if its mini-preamble “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed” had been replaced by completely different wording, eg “The American Bald Eagle, being the national bird of the United States, the right of the people to keep and bear Arms, shall not be infringed” or “The last two ‘ROCKY’ movies, being so inferior in quality to the first, the right of the people to keep and bear Arms, shall not be infringed”.

  6. I am surprised that ranked choice voting wouldn’t be used for the 2nd part of the recall. That would help a lot, it is hard to figure out how to use my vote with simple plurality. The governor when he was mayor of San Francisco said that he didn’t understand ranked choice voting and he has veto ranked choice voting.

  7. Pingback: The CA Recall

  8. Pingback: Reforming the California recall-replacement process | Fruits and Votes

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