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).