California recall: The danger of casual claims of unconstitutionality

In the midst of a global health pandemic, uncontrolled fires and floods, massive earthquakes and justifiable fears of Taliban repression following our ignoble and fumbled exit from Afghanistan, along comes one of our nation’s most respected law deans, Erwin Chemerinsky of the University of California, Berkeley, School of Law, proclaiming California’s electoral process for recalling a governor to be “unconstitutional.”

Despite the U.S. Constitution’s textual commitment of the regulation of the “time, place and manner” of state and national elections to the states (Article I, section 4), Chemerinsky asserts that California’s recall process is contrary to the equal protection clause. 

His declaration of constitutional invalidity is simply unadjudicated and overly broad speculation, and the fanciful claim raised just weeks before California voters will consider whether to recall Gov. Gavin Newsom has spawned a parallel lawsuit challenging the recall. In this, Chemerinsky’s argument has an uncomfortable similarity to the repeated claims of former President Trump that, to this day, he uses to challenge the 2020 presidential election.

The dean’s argument is more sophisticated than that of the former president, and it addresses different subject matter, but Chemerinsky’s argument is similar insofar as both claims of unconstitutionality were put before the public as if the matter can be, and has been, settled from history, text or precedent. That was definitely not true of Trump’s assertion that giving credence to state judicial orders disrespected the meaning of Article II that empowers the state legislature, not state courts, to set the rules for selecting electors in their respective states.

Chemerinsky argues that if California law allows the possibility that the successor of a recalled governor might enter into office with fewer votes than the person recalled, the result is unconstitutional. Like Trump’s argument, the matter has not been settled by scholars or the Supreme Court.

What constitutional provision do Chemerinsky and his co-author claim is contravened? None is persuasively identified. The best the dean and his friend from Berkeley’s economics department can muster is an asserted analogy to Chief Justice Earl Warren’s “one person, one vote” principle implicit in the equal protection clause.

Not so fast. The Warren-era malapportionment cases referenced by the dean dealt with the intentional failure of state legislatures to keep state electoral districts of roughly equal size. Just beneath the surface of that neglect was a tragic history of racial sentiment systematically keeping people of color out of office.

No such malign intent is behind California’s straightforward recall provision that for more than a century has enabled voters who are profoundly disappointed with the administrative performance and capability of their governor to democratically express that dissatisfaction. The California law applies not as a sinister racial means of exclusion, but as a reminder that election does not preclude continuing evaluation of democratically elected officials. 

The recall asks two questions: Should the sitting governor be removed? And if a majority answers yes, a second question is: Who shall step into the post for the balance of the recalled governor’s term? Logically, the law does not invite the governor removed in Step 1 to be his own replacement in Step 2.

Chemerinsky asks us to find this common sense to be a denial of equality sufficient to push aside the respect the Founders had for either the state legislature’s regulation of the “time, place or manner” of elections or even Congress’s power to make exceptions to such state regulation. The dean, flying under the flag of democracy, apparently prefers judicial intervention to deference to the people or their representatives.

There is no basis to assert the unconstitutionality of the California process. If the voters “toss the bum out” after an elaborate, petition-initiated recall, they logically would not, in the same electoral breath, invite the bum back in.

The likelihood that the initial question for or against recall will yield a majority for one view or the other while the second question, because of the multiplicity of candidates, likely will be expressed as a plurality is of no consequence. Indeed, the first answer can be expressed only as a majority outcome — the majority either favors removal or does not.

On the second question, Chemerinsky’s suggestion that the recalled governor should appear on the replacement ballot is less reverence for constitutional equality than a political claim for two bites at the apple. Double-dipping has its own nominal constitutional infirmity since no other candidate would have claim to such an advantage.

That the prevailing outcome can be anticipated to be a plurality, rather than an absolute majority, is of no consequence. Plurality outcomes can be found throughout our republic. Super majorities are required to overcome presidential vetoes; the Supreme Court can split 4-3-2, but the plurality opinion for four justices can state the rule of the case. Pluralities exist in House and Senate rules, and even in many of the ways that state legislatures constitute their own membership (e.g., multi-member districts).

The ongoing calamities referenced at the start of this essay understandably demand most of our attention, but we must be alert to arguments made by respected figures that unintentionally could weaken our constitutional structure. It has become far too easy to toss the word “unconstitutional” into partisan debate. Chemerinsky and his co-author, Aaron S. Edlin, are entitled to disagree with each other or others over how well Newsom has performed as California’s governor, but they are not entitled to conjure up constitutional makeweight claims that effectively place the constitution at war with itself. 

Douglas Kmiec is professor emeritus of constitutional law at Pepperdine University School of Law and founder of the Notre Dame Journal of Law, Ethics and Public Policy. He served as the U.S. ambassador to Malta from 2009 to 2011 and headed the Office of Legal Counsel during the Reagan and George H.W. Bush administrations. Follow him on Twitter @dougkmiec.