University of California Berkeley School of Law Dean Erwin Chemerinsky and Prof. Aaron S. Edlin claim in a New York Times op-ed that the recall of Gov. Gavin Newsom (D) would be unconstitutional, and therefore he cannot be removed.
They argue that the Sep. 14 recall, which some polls now suggest Newsom could lose, violates the principle of “one person, one vote” because it is possible for Newsom to receive more votes than any other candidate and still lose.
As Breitbart News has noted, the ballot has two questions:
The first question, labeled “CALIFORNIA GUBERNATORIAL RECALL ELECTION,” will read (original emphasis): “Shall Gavin Newsom be recalled (removed) from the office of Governor? Vote YES or NO.” The second question will read (original emphasis): “Candidates to succeed GAVIN NEWSOM as Governor if he is recalled: Vote for ONE.” Over 40 candidates then follow.
Newsom will be recalled if a majority of voters vote “yes” on the first question, but his replacement need only win a plurality on the second question, not a majority. Newsom could theoretically win many more votes than his replacement.
Chemerinsky and Erwin argue:
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.
That scenario is not a wild hypothetical. Based on virtually every opinion poll, Mr. Newsom seems likely to have more votes to keep him in office than any other candidate will receive to replace him. But he may well lose the first question on the recall, effectively disenfranchising his supporters on the second question.
…
This is not just nonsensical and undemocratic. It is unconstitutional. 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.
Though Arnold Schwarzenegger replaced Gov. Gray Davis (D) in 2003 with.a similar process, Chemerinsky and Erwin note that Schwarzenegger won more votes than Davis, so the question was moot.
Legal scholar Jonathan Turley of George Washington University wrote Thursday that while Chemerinsky and Erwin make “a great policy argument for a change in the recall system,” the system is not unconstitutional because it does not weight anyone’s vote more heavily than another’s: “[T]here is equality in voting. The first vote is by majority. The second vote can be won by plurality. However, all of the votes are weighed the same. Indeed, the professors do not object to some voters being able to elect their choice by plurality.”
Officials will begin sending out mail-in ballots to all registered voters in the State of California in the coming days.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the new e-book, We Told You So!: The First 100 Days of Joe Biden’s Radical Presidency. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.
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