Voters file lawsuit claiming CA recall election is unconstitutional. How likely will plaintiffs win?

California gubernatorial recall election information guides are placed inside the Monterey County Elections office in Salinas, Calif., on Thursday, Aug. 12, 2021. Photo by David Rodriguez/The Salinas Californian via Imagn Content Services, LLC.

As more Californians receive their recall ballots, what if Governor Gavin Newsom finishes just shy of the 50% threshold he needs to stay in office? But no candidate even comes close to that vote total on the ballot’s second question of who should replace him.

“The constitutional violation happens if more people want Newsom to stay in office than vote for any other candidate, but some other candidate becomes governor,” Berkeley Law dean Erwin Chemerinsky told KCRW a few weeks ago. “That’s inconsistent not just with basic democratic principles, but also with this idea that everyone’s vote should have an equal influence in the outcome of the election.”

Now two California voters have filed a lawsuit challenging the recall election’s constitutionality using that very argument. They argue that the state’s recall process violates the 14th Amendment’s equal protection clause. The plaintiffs want the recall canceled or Newsom’s name added to the ballot.

Meanwhile on Friday, a Superior Court Judge found Prop 22 unconstitutional and unenforceable. Prop 22 allows Uber, Lyft and Instacart to opt out of a California law that requires gig workers to be classified as employees and get benefits.

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