Recently, I was critical of a Washington Post column by University of California-Berkeley Dean Erwin Chemerinsky and Professor Aaron S. Edlin, who argued for a legal challenge of the recall election of Callifornia Gov. Gavin Newsom as unconstitutional. They insisted that the recall election violated the concept of “one person, one vote.” While Chemerinsky and Edlin insisted that the unconstitutionality of the recall election “should not be a close constitutional question,”  I argued that most judges would likely agree but come to the opposite conclusion.  Apparently, one such judge is United States District Court Judge Michael Fitzgerald who went out of his way to say that this was not a close question before summarily dismissing the Chemerinsky/Edlin theory.

The professors based their argument on 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.

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, but insisted that the second vote would violate “one person, one vote” because less than a majority could elect Newsom’s replacement (far fewer than the voters who sought to retain him). However, the second vote does not appear an effort to inflate or reduce the power of voters. The system may have been designed to achieve a more rapid or efficient transfer of power:

“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.”

As I noted in the column:

“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 theory was put to the test before Fitzgerald, an Obama appointee, who had the same reaction.

Chemerinsky and Edlin insisted “The Constitution simply does not permit replacing a governor with a less popular candidate.” However, Fitzgerald saw no constitutional barrier to the citizens of California creating such a system. He noted that the Supreme Court case law like Burdick v. Takushi, 504 U.S. 428, 433 (1992), clearly establish that “the right to vote inherently has common-sense limitations because every conceivable candidate or issue cannot be presented on every ballot.” This case law further clearly establishes that:

“There simply is no Fourteenth Amendment violation here, under either the Due Process Clause or the Equal Protection Clause or the Privileges and Immunities Clause, for these reasons: First, as a matter of logic and common sense, it simply is not true that Plaintiff only gets to vote once while others get to vote twice. Plaintiff and all California voters have the opportunity to vote two distinct issues. The first is whether the Governor should be recalled. Plaintiff and all other voters have the opportunity but not the obligation to vote for a replacement candidate. Obviously, that vote only matters if a majority of the voters turn out to have voted ‘Yes.’ Plaintiff and all other voters have the same equal vote as to who the Governor’s replacement should be.”

Fitzgerald describes the rest as more disgruntlement than any constitutional infirmity:

“Plaintiff’s argument ignores that a majority of the voters must first vote to remove the Governor before votes for the replacement candidates mean anything. Plaintiff plainly feels disgruntled that a replacement candidate with a small plurality might replace a sitting governor who, based on a robust ‘No’ vote, might well have beaten that same replacement candidate in a general election. As that may be, such disgruntlement raises no federal constitutional issues and certainly does not give the federal judiciary the right to halt the mammoth undertaking of this gubernatorial recall election. No one suggests that a state constitutional mechanism for recall is in itself unconstitutional. If the possibility for recall exists, then a means for selecting a successor must be specified. No doubt, it would be cheaper and simpler to replace a sitting governor with the lieutenant governor. But for over one hundred years, California has chosen a different procedure. The United States Constitution does not prevent that. California voters who are dubious of a ‘plurality lottery’ among the forty-six replacement candidates have the opportunity to vote ‘No.'”

Nevertheless, the theory was pushed by the Washington Post and a host of liberal websites. Post readers were delighted to hear that, once again, the law was clear and the outcome desirable. The only difficulty was in first finding a credible constitutional basis and then a willing court.  This theory appears to have fallen short on both fronts with Judge Fitzgerald.

The court saw no reason to go forward with the case on the hopes of developing this theory further: “In theory, this action could continue after the election, just as the action did in Townley. However, the Court fails to see why discovery or further proceedings or a trial would matter; Plaintiff has presented a clever issue of law upon which this Court has ruled, correctly or not.”

Here is the opinion: Clark v. Weber