University of California-Berkeley Dean Erwin Chemerinsky and Professor Aaron S. Edlin have purportedly solved the problem faced by Gov. Gavin Newsom. Despite overwhelming support in the media and massive fundraising on his behalf, Newsom is facing worsening polls in his fight against his recall and could lose in the election. In their guest essay for the New York Times Chemerinsky and Edlin declare any such successful recall would be unconstitutional as a denial of the principle of “one person, one vote.” The reason, however, would seem to suggest a wide array of elections as unconstitutional in the process.Chemerinsky and Edlin start their analysis with a reasonable objection. They note that Newsom could lose the first vote on the recall but still have more votes than anyone elected in the second vote for his replacement. That seems highly likely with the large number of people vying to replace him.
That would make for a great policy argument for a change in the recall system. Indeed, I have long argued that a president should not be elected with less than a majority of votes and that we should hold runoffs of the two top candidates to guarantee majority support (the same could be done in a recall election). However, I did not argue that presidents elected with less than a majority was unconstitutional given the federal electoral college.
Chemerinsky and Edlin go further to call for challenges based on the concept of “one person, one vote” and point to the Supreme Court case law. They cite two 1964 cases, Wesberry v. Sanders and Reynolds v. Sims addressing voting districts with significantly different populations. The result is that voters in the smaller population districts had greater voting power.
Not only do the professors call for a challenge, they insist that this “should not be a close constitutional question.” I expect many judges would rule that they are correct that it is a not a close question but not for the same reason (or outcome).
For Newsom to be removed, a majority will have to declare that they no longer want him to be governor. The professors do not question that such a vote is entirely proper and constitutional.
On the second vote, Newsom is not a candidate because the majority of voters decided that they want him out of office. They did so knowing that they would then have to vote for someone else in the second vote. California decided that, rather than hold a runoff for a majority-supported replacement, they would simply accept that candidate with the most votes. There are various possible supporting reasons for such a system. The state may have viewed a recall as a traumatic and costly distraction from government. This simple process allows for someone to take office quickly and without an extended campaign. Moreover, the state may view the term as an abridged or shortened period. Presumably, a governor could be removed with only a few weeks or months remaining. The voters would then have a chance to elect a new governor if they so desired.
This has happened before. Gray Davis was removed from office in 2003 and replaced by Arnold Schwarzenegger. Davis only received only 44.6 percent for remaining in office and Schwarzenegger received 48.5 percent of the vote to assume the office. Even though he received less than fifty percent of the vote, the professors declared that “Schwarzenegger was properly elected” because he still receive more votes that Davis. Thus, the problem is not that a governor is elected with less than a majority but only that he could be elected with fewer voters than the recalled governor.
I do not see the clear or even compelling basis for declaring the recall system unconstitutional on that ground. First, as a practical matter, citizens may vote against a recall simply because they do not want to see a turnover of office as opposed to supporting Newsom. Second, the disparity in the two votes is due to the first vote being a binary choice. Either Newsom is in or Newsom is out. The state understood that reality when it allowed any qualified person to run in the second vote. The value a replacement securing a majority was not as great as giving the greatest degree of opportunity for others to seek the office.
Finally, there 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.
The essay suggests that, since the losing voters in the first round would prefer Newsom to the alternatives, their votes are being watered down or curtailed. However, they lost that first vote and those same voters then fractured due to the large number of alternative candidates. They still voted and their votes still were weighed the same.
Nevertheless, the professors declare that “The Constitution simply does not permit replacing a governor with a less popular candidate.” That is not correct in my view, though reasonable people can disagree on such points. After the first vote, there was no more popular candidate. At that point, Newsom was neither governor nor a candidate under California law after the first round. Of course, if these professors believe (as they state) that this is a relatively easy constitutional question, they should challenge the law. It may prove neither a close nor a viable constitutional question.
The DEMS will rig it like they always do. They are masters at criminality. Republicans need to start acting the same way they do sticking together no matter how much they don’t like it. Instead of being RINOS to get their palms greased by the big chunks of “Stimuli grabs”
Elder will win on September 14 and by November “they” will announce Gruesome won and California will be forever in the hands of the communists. The LA Times, NYT and Wash Post will say it is the fairest election ever.
University of California Berkley – enough said
If the result of the recall election is that Elder becomes Governor of California, he will automatically be a contender for the preidency in 2024.
If Trump, whom Elder supports, runs, Elder would be a logical running mate. But if Trump does not run, Elder would be an extremely attractive GOP presidential candidate, who would be very hard for the Dems to beat.
Trump is running in 2024 he announced it on Thursday morning on a conservative site with a conservative host. Not Lame Stream media.
As we know from Social Choice Theory, runoff voting, whether conventional or instant runoff voting (IRV) often fails to find the true winner, whereas round-robin (aka Condorcet voting) will always find the majority winner (with the occasional tie break a theoretical possibility). Here’s how I think a recall should be handled.
The ballot options should include all of those who want to be the Governor if Newsom is successfully recalled and an option that says to keep him. Round-robin allows the preference order of EVERY voter to be expressed. Here is how this might work. To keep it simple, let’s say there are five candidates for the office if the Governor is removed. Let’s say the five candidates consist of two Republicans (R1, R2), one Libertarian (L1), and two Democrats (D1, D2). If a voter doesn’t support the recall, we’ll have the option called KG (for Keep Governor). Let’s assume the typical Republican would rank R1 and R2 in one of the following ways on the ballot: R1 1st R2 2nd; the reverse of that; only R1 1st or only R2 1st. KG and all other options could be left blank. This is the same as Republicans ranking ALL of the other possibilities, including keeping the Governor, below their preferred candidate or candidates. The Dems might have a similar setup EXCEPT, that they would rank KG as 3rd on their ballot, preferring to keep a Democratic Governor over either choosing a Republican or Libertarian.
The Libertarian would typically get Libertarian voters whose ballots would have the Libertarian first and no other acceptable results (a “bullet vote”). However, some Libertarians might well have another candidate 2nd – probably a Republican but, speaking as a libertarian, there might be an acceptable Democrat.
It’s easy to imagine other possibilities, such as a ballot that has D1 1st, KG 2nd, and D2 3rd. Another one that might occur could be KG 1st but one of the Democrats as 2nd if the voter wants to keep the Governor but if the Governor is removed, there is a preference between the two Democrats but no preference among the remaining Democrat, Republicans, and Libertarian.
Only the round-robin voting system will allow all of these possible preference orderings to be expressed AND to resolve them in a way that will produce the “true majority winner”. In particular, I think the sort of preference ordering I suggested, where a candidate will be preferred to keeping the Governor while keeping the Governor is preferred to all of the remaining candidates may be fairly common.
IRV would be monstrously complicated and because it does not count all of the votes is much more obviously illegal than the hypothetical under consideration. — Paul Hager (posted by media assistant Karen A. Wyle)
Elect Elder, because we have a state to save.
https://www.electelder.com
Wait.
Americans save a state by electing a beneficiary of wholly illicit, unconstitutional generational welfare, affirmative action, food stamps, quotas, social services, public housing, forced busing, unfair “Fair Housing” laws, discriminatory “Non-Discrimination” laws, WIC, SNAP, TANF, HAMP, HARP, HUD, HHS, Obongocare, etc.???
I have an idea. America elects Americans, terminates the communist welfare state, deports illegal aliens (i.e. the emancipation proclamation made freed black slaves, illegal aliens because citizens must have been “…free white person(s)…”) and implements the “manifest tenor” of the original Constitution and Bill of Rights.
Wait.
Those were the ideas of the American Founders.
An election with mail-in voting and few ID/Citizenship safeguards isn’t much of an election. It will take a lot for Newsom to lose, starting with a loss of the favor of the Dem machine.
DON’T FORGET his Aunt Nancy Pelosi will rig it for him just like Biden.
It’s all for naught. Republicans (of which I am one) are delirious if they think Newsom is going to get recalled. Aint gonna happen, no matter what the poll “suggest”.
Anonymous:
Until voters in CA get more educated about the cause (their vote) and the effect (everything they hate about the state), then even if Newsom is recalled, they will probably vote in someone just like him.
I’m backing Larry Elder. But people who don’t listen to conservative news might have no idea how the Left has plowed this state into the ground. They might not know that to get change, they’ve got to vote for a different paradigm.
“They might not know that to get change, they’ve got to vote for a different paradigm.”
***
And their votes need to be counted.
I quote from Robert Bork, “When we speak of “law,” we ordinarily refer to a rule that we have no right to change except through prescribed procedures. That statement assumes that the rule has a meaning independent of our own desires.” Again and again we encounter leftists trying to force their will on others regardless of the law, and use the judiciary as their vehicle to do so or in many jurisdictions by fiat. This must stop, without laws that are applied equally and adhered too we have no country.
California Constitution Article II Voting Initiative and Referendum, and Recall,
Section 1, All political power is inherent in the people…
Section 9, The referendum is the power of the elector… statutes calling elections
…
Section 13, Recall is the power of the electors to remove an elective officer
.
Section 14,
(a) Recall of a state officer is initiated by delivering to the Secretary of State a petition alleging reason for recall. Sufficiency of reason is not reviewable. Proponents have 160 days to file signed petitions
(b) A recall election may be conducted within 180 days from the date of certification of sufficient signatures in order that the election may be consolidated with the next regularly scheduled election occurring wholly or partially within the same jurisdiction in which the recall election is held, if the number of voters eligible to vote at that next regularly scheduled election equal at least 50 percent of all the voters eligible to vote at the recall election.
(c) If the majority vote on the question is to recall, the officer is removed…
Section 17, If recall of the Governor.. is initiated, the recall duties of that office shell be performed by the Lieutenant Governor..
A bad case of “motivated reasoning”
The desperation shown by the leftist academia has no bounds. Their esoteric legal arguments favoring Newsome’s pathetic last gasp to retain power, reflect their own animus to the established rules of a democratic republic.
Of course, if Newson stays in office the Trumpists have the good ole way of just storming the capital. Or maybe have lawyers declare they don’t like what the results were. Have recount after recount until they “find” votes. Or they can just get republican legislators to pass laws that have their committees count what votes they want to count. And if all that fails, look for New York fibers in the ballots. Check to see if Chinese thermometers were being used. I hear the Italians have some pretty good satellites. And if all that fails just say there was fraud, even when they can’t prove or even find fraud, my money is on the New York fibers.
You perfectly described the Democrat playbook.
And this playbook will continue anytime a Republican president is elected….there will be NO peace in the streets or in the country unless a Democrat is in power.
When a Republican is in power there will be unrest. Antifa/BLM rioting in our cities. Fake News Media onslaught of smears and relentless attacks. Big Tech censorship. Mail-in balloting. Congressional investigations. FBI setups. Etcetera…
We’ve seen the Dem playbook. It’s here to stay.
Why not open your mind and listen to what happened in the election. It’s about the globalists stealing the election. It’s not about Trump any longer. Just listen to the computer “scientists”. Trump is not going to be put in office and Joe kicked out so you can afford to listen! You have nothing to lose by listening objectively.
FishWings:
If Newsom loses, the Leftists always have the good ole way of just rioting, burning down businesses, seizing many city blocks for their own in outright sedition, flipping cop cars, assaulting police officers, burning down a police precinct, harassing people in restaurants, demanding they pledge loyalty to Newsom or be assaulted (in this case substituting Newsom for BLM), assaulting journalists, and beating and killing people.
Or the Democrats in the CA legislature could “flee” the state if he loses, preventing quorum until the next election.
Democrats have claimed that every presidential election they lost was stolen, and many other elections, too. Has Newsom already figured out who he can blame, other than himself, for so many Democrats, Republicans, Libertarians, Independents, and political agnostics working together to boot him out?
I guess he can always cry into his wine at the French Laundry, or find solace in his PlumpJack Winery.
No recount was done. Go dig and check what Hobbs (AZ) really did and by whom. (Check MI DePerno law suite election, MN audits and 200,000 illegal ballots or GA Garland Favorito law suite uncovering and release of 148,000 absentee ballots and 65% vote error rate Votes. All this isSenate and or court ordered and approved audits. You might have to go to Duck as search engine or Rumble to see the court hearings all which should horrify you that it’s censored by big tech and what starts will bite you on t he ass one day. On AZ audit Each detail to be exact as they will be challenged in court as a must because some will go to jail. At least let’s see it all play out. And if your some one who’s says blind mail ballot is ok and voter ID for voting can be Any state ID DL,State,Pasport or any utility bill or last 4 of your Social Security number is too much. Well besides dumb your unable to speak to with reason as 87% of USA agrees with voter ID if your the 13% your only going to change if you become successful one day and see every $100 you make you only take home $42 today and they want to double that as ok your not reasonable. . $.20 on the dollar is what their are calling for and I don’t make that much and I fall their.
If they, and their entire ideology/power grabs weren’t legitimately in the crosshairs, they wouldn’t be saying anything. I’d love to know how the DNC coffers get distributed, too much is too conveniently timed. This is what desperation in response to pressure looks like. If the dems can’t steal the midterms, they know they are mincemeat. It’s that simple. Had there been no Obama, they would likely have different choices today.
Looks like the good professors are attempting to muddy the water for their favorite party…
“It’s the [Constitution], stupid!”
– James Carville
_____________
These communists (liberals, progressives, socialists, democrats, RINOs) from Berserkely are engaged in treason.
These communists (liberals, progressives, socialists, democrats, RINOs) are direct and mortal enemies of the Constitution, America and actual Americans.
This entire concept is pure rubbish and actionable, irredeemably anti-American, communist propaganda.
The American Founders established a restricted-vote republic.
Never were the “poor” intended to vote.
_______________________________
“the people are nothing but a great beast…
I have learned to hold popular opinion of no value.”
– Alexander Hamilton
_________________
“The true reason (says Blackstone) of requiring any qualification, with regard to property in voters, is to exclude such persons, as are in so mean a situation, that they are esteemed to have no will of their own.”
“If it were probable that every man would give his vote freely, and without influence of any kind, then, upon the true theory and genuine principles of liberty, every member of the community, however poor, should have a vote… But since that can hardly be expected, in persons of indigent fortunes, or such as are under the immediate dominion of others, all popular states have been obliged to establish certain qualifications, whereby, some who are suspected to have no will of their own, are excluded from voting; in order to set other individuals, whose wills may be supposed independent, more thoroughly upon a level with each other.”
– Alexander Hamilton, The Farmer Refuted, 1775
_______________________________________
The American Founders did not establish one man, one vote democracy, which is impossible, per Tytler.*
Turnout was 11.6%, by design, in the election of the Founders, the 1788 presidential election, won by the Father of his country, George Washington.
States set severely restrictive voter criteria as male, European, 21 with 50 lbs. Sterling or 50 acres.
The vote was solemn with voters presenting at a polling place, being identified and certified and casting their votes on the one, single day of the election, “…the Tuesday next after the first Monday in the month of November.”
Ultimately, the vote in America was less important than the “manifest tenor” of the Constitution and Bill of Rights.
Elected officials, who went on hiatus from their endeavors and pursuits of happiness, actually served the country temporarily by supporting, defending, implementing and perpetuating the “manifest tenor” of the Constitution and Bill of Rights.
The Constitution and Bill of Rights (i.e. freedom, free enterprise and self-reliance) were to prevail over the desires and avarice of men, charlatans, tyrants, despots and dictators.
It is the Constitution, not the vote, that is of utmost importance.
_________________________________________________
*
“A democracy cannot exist as a permanent form of government. It can only exist until the majority discovers it can vote itself largess out of the public treasury.”
– Alexander Tytler
______________
“…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”
“…men…do…what their powers do not authorize, [and] what they forbid.”
“[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”
– Alexander Hamilton
“Screw your freedom!”
– Arnold Schwarzenegger, Communist (Liberal, Progressive, Socialist, Democrat, RINO)
Reynolds is a good example of a SCOTUS decision that, trying to solve one problem, does great harm in the process. Because of it, states were forced to apportion their both chambers of their legislatures based on population to preserve “one man, one vote,” thus leading many states, such as CA and IL, to be utterly dominated by their megalopolises at the expense of their “outer” areas depriving them of effective representation. Even Senator Dirksen, a noted champion of civil rights, was so aghast at this that he proposed an amendment to allow legislative districts of unequal population.
And I’ll bet he feels Trumps impeachment was. It all depends on who’s ox is being gored.
You may be reasonable, but they likely are not.
That said, the D’s are apparently worried about losing 2 Governor’s this year
I have frequently said that many Lefties are intellectually dishonest.
These law professors make my point.
Why don’t we “recall” these so called “Law Professors,” who are destroying our legal system with every student they indoctrinate?
I can assure the readers that those graduating from UT Law School are conscientious but still indoctrinated in the mechanics of how the law works, how to file a case, how to possess jurisdiction, standing etc. In actual practice the legal community that’s taught is NOT the legal community these students engage with. Knowledge of the law is one thing, however in actual practice you’d think you entered into a group grope with Professor of Dirty Tricks Daniel Segretti and not the practice of law.
Music to tune of East Side West Side
Lefty! Righty! All around the town!
Commies and Nazis each abound…
And they run their towns!
I will move to France.
That’s where people have pants.
There would have been a simple way to eliminate this problem. Only voters who vote “yes” on the first question of whether the Governor should be recalled should be permitted to cast a vote on the second question of who would replace him. That way, a “no” on the question of recall would also count as a vote for Newsom.
Voting NO on the first question (Should the Governor be recalled?) is a vote for Newsom. Only if he loses this vote do we move on to the second question (Who should the new Governor be?). Since Newsom is recalled, he is not an eligible candidate. If we implement your approach, all those who would prefer the current officeholder are left out of the (who else?) phase. While a reasonable approach, the approach chosen was to assume a ‘fresh’ election where all voters participate. Unlike a primary, this will be a ‘final phase’ election, with a plurality adequate to win.