Is California’s recall process unconstitutional? Berkeley Law dean says it doesn’t uphold democratic majority rule

Californians will soon receive their mail-in ballots for the September 14 recall election. They’ll face two questions: Should Governor Gavin Newsom be removed from office, and if so, who should replace him? There’s a list of 46 candidates to choose from. For Newsom to keep his job, he’ll need at least 50% of the vote on that first question. But if he falls short, he’ll be replaced by the top vote getter in the second question. But that person likely won’t get anywhere near 50% of the votes.

Erwin Chemerinsky, dean of UC Berkeley School of Law, says this system is unconstitutional because it doesn’t uphold the democratic principles of majority rule and the equal treatment of each vote.

He says this recall system was created about a century ago, with the intention to give the popular vote a larger voice in controlling government. Largely used to recall judges up until the 1930s, he says that the system was used against in the 2003 recall election of then-governor Gray Davis.

“The initiative process is based on the idea that if the legislature isn't doing what the people want, let the people adopt laws directly. And the thought is: If a government official isn't performing adequately, have a recall. … Now I think we're seeing it used much more for political reasons,” he says. “I think the Republicans who decided to launch this recall thought their best chance of getting a Republican to be the governor was through this kind of a process rather than winning in 2022.”

Chemerinsky says it's possible to initiate a lawsuit to address the recall facing Newsom.

“The court could act before the election. … I think a remedy would be … put Gavin Newsom on the second ballot, or just invalidate the second ballot and say if Newsom loses on the first question, the lieutenant governor takes over.”

Chemerinsky says he hopes the recall process is either abolished or made more difficult to initiate.

“I worry that what we're now going to do is have those on the losing side of an election regularly bringing recall efforts. We saw it with regard to a judge just a couple of years ago (with Aaron) Persky. We're seeing it now with George Gascon, the district attorney in Los Angeles County, facing a recall effort. And I think that it's possible to see future instances where those who can't win in the general election will try to win through a recall procedure.”