Election Hail Mary — California recall law unconstitutional?

As the recall election effort against California Gov. Gavin Newsom hits its stretch run, a new lawsuit filed by third parties has taken a different approach to head off the election – get California’s recall law declared unconstitutional. Suing to stop a recall is not a novel undertaking at all. Almost every recall of note comes with lawsuits, with a spotty record of success in stopping the vote. But the political repercussions of a lawsuit of this type can backfire and help the recall proponents.

The lawsuit, which was thrown out by a lower court but is being appealed, is based on a claim that California’s recall law violates the principles of one-person, one-vote as set out in the Baker v. Carr and Reynolds v. Sims line of cases, some of the most important U.S. Supreme Court decisions. Before the Court acted in 1962, legislative districts were lopsided, to the degree that the largest districts in some states had more than 200 times the population of the smallest ones. This greatly increased the power of those in the smallest districts.

The argument for unconstitutionality rests on the fact California law uses a two-step form for its recall law. The sitting official faces a yes or no vote on whether they can stay in office. On the same ballot, voters choose the replacement. The ousted official is barred from the replacement race.

In practice, what this means is that Newsom can be bounced with a much higher total vote than his replacement received. Newsom can receive 49.9 percent of the vote and lose, while the replacement, with 46 names on the ballot, can receive less than 3 percent and still take over. Additionally, Newsom’s campaign is calling on voters to skip the replacement vote, something they have done on their own in the past. In 2003’s gubernatorial recall, 4.6 percent of the ballot skipped the first question of removing the governor. But 8 percent of the people skipped choosing the replacement.

While this issue did not end up mattering in the 2003 recall race, thanks to Arnold Schwarzenegger’s strong performance in the replacement race, over the last decade we have seen at least five instances of the losing official outdrawing the replacement. In fact, in the last notable recall on the state level in California, State Senator Josh Newman (D) received nearly 16,000 more votes than his replacement.

California’s law is not unusual. Nine of the 19 states with a recall election for governor use the yes/no followed by a replacement vote model for the recall, though in seven of them, the replacement vote takes place on a later date (among the other recall states, four provide a new election, and six simply promote the next in line, the lieutenant governor or secretary of state). Among the nine states with the replacement race, at least five of them bar the official from seeking the office if they lose the recall vote.

Some places have other methods to make sure that there is a strong turnout in favor of a recall. Idaho has what we can call a “Queen of the Hill” provision, where the removal vote has to be higher than the amount of votes the official received when they won the office in the regular election. Other places, mainly overseas, require a specific turnout percentage to be met for the recall to count. In those places, the most effective way to counter the recall is to have your supporters not vote at all.

It is unclear that this new lawsuit has much of a chance of success. So far, Newsom has not been particularly successful in the courts during this recall campaign, including losing a case that would have allowed him to list his party affiliation on the ballot. And based on recent decisions that have limited judicial engagement in the political process, it would be a big surprise for the Roberts’ Supreme Court to be receptive to this argument.

Whatever the merits of the suit, the political optics are bad.

There is little reason to think voters prefer candidates who sue or use other means to stop or delay a recall once it is on the ballot. Instead, they may view the official as scared and looking to use loopholes to get out of a race. In 2017, the Democrats added a number of procedures to the recall law when Senator Newman was facing his recall. This had the effect of delaying the recall until the primary day, but it was no real benefit for Newman himself when the vote came down.

In Arizona in 2011, State Senate President Russell Pearce tried to get his recall thrown out by the court. Instead, the Arizona Supreme Court allowed the recall — waiting until after the election to issue a ringing endorsement of the right to recall — and the voters kicked Pearce out of office by a large margin. 

Newsom has not tried to kill the recall attempt in court — but with some of his supporters doing just that, Newsom could pay the penalty for their effort. The possibility that voters see this suit as a sign of weakness is probably much greater than its chance of success in the courts.

Joshua Spivak is the author of “Recall Elections: From Alexander Hamilton to Gavin Newsom.” He is a senior fellow at the Hugh L. Carey Institute for Government Reform at Wagner College and writes the Recall Elections Blog.