Page 1
Ninth Circuit Upholds California’s Recall Procedure
Panel Sees No Constitutional Infirmity in Barring Subject of Recall to Run As a Replacement Candidate
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday affirmed the dismissal of a lawsuit challenging the constitutionality of California’s recall-election procedure, with the court rejecting the contention of the plaintiff that his rights were violated by virtue of his inability to vote for Gov. Gavin Newsom as his own replacement had voters ousted him from office.
In particular, plaintiff A.W. Clark, 21, argued that the Fourteenth Amendment’s one-person, one-vote principle was violated and he was denied the right to vote for the person of his choice by virtue of Newsom being disqualified under the state Constitution from being a replacement candidate.
Newsom did, in fact, survive the Sept. 14, 2021 recall election, with 61.88 percent of the voters casting ballots answering in the negative the question of whether the governor should be fired. Nonetheless, Circuit Judge Paul J. Watford wrote in an opinion for a three-judge panel, the case is not moot, explaining:
“Completion of the recall election could have mooted this action, as Clark’s original complaint sought only prospective relief with respect to the September 2021 gubernatorial recall election. But Clark amended his complaint to add a request for nominal damages, which we presume he asserts against defendant Shirley Weber. California’s Secretary of State, in her individual capacity….Clark has adequately alleged a completed injury—namely, his inability to vote for Governor Newsom on question two during the recall election—that is fairly traceable to the California election procedures he challenges. Because an award of nominal damages would redress that injury, this case is not moot.”
Disparate Voting Power
Addressing Clark’s contentions, he found no merit in the assertion that those who wanted Newsom to remain in office had only one vote—checking the box indicating “no” to the question of whether the governor should be recalled—while Newsom’s detractors had two votes: “yes” on the recall and also a vote for the replacement.
Under Article II, §15(c) of the California Constitution, the subject of a recall election “may not be a candidate” in the contemporaneous balloting for a successor, should the recall succeed.
Watford wrote:
“Clark’s argument might have merit if voters who answered ‘no’ in response to question one were bared from voting for a successor candidate on question two. But that is not the case. All voters have an equal right to answer ‘yes’ or ‘no’ in response to question one, and regardless of how they vote on that question, they may then choose to vote for a successor on question two from the list of candidates who qualified for the ballot. It is true that voters like Clark who wanted Governor Newsom to remain in office were not able to vote for him as a successor candidate on question two. The inability to do so, however, relates to the right to vote for a candidate of one’s choice….As for the one-person, one-vote principle, no violation occurred because all voters enjoyed an equal right to vote on both questions, and all votes cast on each question were afforded equal weight.”
Clark also maintained that the one-person, one-vote was breached because the incumbent must receive a majority of the votes to prevail while a would-be successor need only attain a plurality, thereby creating a “dilution” of votes by those opposing a recall. Watford answered:
“California’s recall procedure in effect permits two separate elections to be conducted simultaneously. The first election determines whether the incumbent will be removed from office; the second determines who the incumbent’s successor will be. Every vote is weighted equally in each election, and the right to equal representation is not violated simply because the two elections require different vote thresholds or because one election is decided by a plurality vote.”
Candidate of Choice
Proceeding to the issue of whether Clark had been deprived of the right to vote for the candidate of his choice, the circuit judge said that “[t]he restriction challenged here imposes no greater burden on the right to vote than the term limits” California has set, validated by the Ninth Circuit in 1997.
“Like term limits,” he reasoned, Article II, §15(c) “imposes a neutral restriction on voting that applies across the lines of political affiliation, race, religion, and gender,” adding that “like term limits,” it takes only one candidate option off the table for voters, leaving them with many other options.”
Watford declared that the provision’s “neutrality and relatively minor impact on voters’ ability to make themselves heard render it a non-severe burden on voting.” He added that it serves “an important interest in ensuring that the power to recall guaranteed to its voters is effective and does not invite an endless cycle of recall attempts.”
The case is Clark v. Weber, 21-56337.
Joining in the opinion were Senior Circuit Judges Diarmuid F. O’Scannlain and Andrew D. Hurwitz. The opinion upholds a decision by Superior Court Judge Michael W. Fitzgerald of the Central District of California.
Copyright 2022, Metropolitan News Company