The unconstitutional logic of California’s recall election

Governor Gavin Newsom faces the prospect of being recalled and replaced in an election in which he is the clear mathematical winner. If this seems nonsensical, it is. And it violates the U.S. Constitutional guaranty that each person's vote be counted equally. The core illegality in California's recall provision, set out in California Constitution, Article II, Section 15, is that it requires the current governor to obtain a majority to retain office, but requires only a plurality for the winning replacement candidate. This setting of different electoral bars for different candidates violates the equal protection rule all votes must be counted equally.

A state may choose to elect its governor by majority, as Georgia does, where the victor's vote total must exceed 50%. Alternatively, a state may choose to elect its governor by plurality, as Oregon does, where the victor's vote total need only be the greatest among the candidates. But what a state may not do is hold an election in which one candidate is singled out and subjected to a majority requirement, while the other candidates are subject to the lesser plurality requirement. Yet this is precisely what California's recall process does. And it is why Newsom could win 49% of the votes cast and yet lose to a candidate who garners only 18%. These are the approximate current polling numbers of Newsom and the leader in the pack of replacement candidates, conservative talk show host Larry Elder. Handing the governorship to Elder based on these results would be, in statistical terms, completely bonkers. And it would be unconstitutional.

Like Oregon, California uses the plurality model to elect its governor. The general election candidate with the most votes, even if less than a majority, moves into the governor's mansion. And so it is anomalous that the drafters of the state constitution would insert a provision allowing recall by a majority. This anomaly can be seen in a simple example: Assume Newsom and candidates B and C run for governor in the general election. Newsom wins 49% of the vote; B wins 30%; and C wins 21%. Newsom becomes governor. Then assume six months later a recall is initiated by disgruntled supporters of candidate B. A recall election is held in which B and a gaggle of other replacement candidates challenge Newsom, resulting in unchanged voter support for Newsom and candidate B: 49% vote to retain Newsom; and candidate B tops the replacement field with 30%. Under the California Constitution, the identical voter outcome that originally elected Newsom would now recall and replace him with candidate B, whom Newsom thumped by 19 points. Twice.

What California's constitutional drafters failed to recognize was that majority voter opposition to the incumbent (votes to recall) has no significance in a race among more than two candidates. This is because in such a race it is likely every candidate is opposed by a majority. The only thing that matters in such a race is which candidate is supported by the most voters. The nonsignificance majority opposition is apparent in the above hypothetical when one considers that, compared to Newsom's oppositional vote of 51%, candidate B had an oppositional vote of 70%, and candidate C had an oppositional vote of 79%. Voter opposition to candidates B and C is a bit harder to see -- because only as to the incumbent does the recall ballot ask for an express vote of opposition ("Shall Gavin Newsom be recalled?"). But make no mistake, candidate B was opposed by every voter who chose another candidate. And returning our focus to the current race, Newsom's support of about 49% means 51% oppose him being governor; and Elder's support of about 18% means 82% oppose him being governor. The twisted logic of such a recall is basically, "The voters are lukewarm about Newsom; let's replace him with someone they really cannot stand."

A recall allowing Elder's 18% to overcome Newsom's 49% would be unconstitutional. In Reynolds v. Sims (1964) the U.S. Supreme Court held the fundamental equal protection principal of one person, one vote was violated where disparate populations in state congressional districts gave residents of less populous districts more voting power than those in more populous districts. This made clear that a voting scheme giving some votes disproportionate weight violates equal protection, and that this rule applies to elections for state office. A recall scheme giving 18% of voters more power than 49% of voters violates this constitutional rule.

Newsom's opponents may argue that a recall is not a general election and therefore not subject to the rule of one person, one vote. But a recall is plainly an election for the office of governor; designating it a "recall" does not change this fundamental fact. The U.S. Supreme Court has held that a state may not circumvent a fundamental federal right by creatively labeling the provisions of the offending state law. Cunningham v. California (2007). Just as a rose by any other name still smells the same, calling an election a "recall" does not exempt it from the rule all votes must be counted equally.

If you are wondering why this issue was not raised and resolved in 2003 when Gov. Gray Davis was recalled, the answer is that only 45% of the electorate voted to retain Davis, while 49% voted for winning replacement candidate Arnold Schwarzennegger. Schwarzennegger received more votes than Davis, and so the 2003 outcome was consistent the one person, one vote rule.

If a narrow majority does vote to recall Gov. Newsom on September 14, we can expect a period of furious constitutional litigation--and of uncertainty over who is at the helm of the Golden State as it navigates the drought, economic recovery, and the COVID pandemic.