Is California’s recall process unconstitutional?

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.

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.

“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.”

He adds, “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.”