Federal Judge Says California Recall Is Constitutional

California Gov. Gavin Newsom fields questions after a rally where he signed the California Comeback Plan relief bill Tuesday, July 13, 2021, in Los Angeles. (AP Photo/Marcio Jose Sanchez)
AP Photo/Marcio Jose Sanchez

A federal judge threw out a challenge to the constitutionality of the California recall process on Friday, ruling that it is constitutional and does not violate the “one person, one vote” principle.

As Breitbart News reported, two University of California Berkeley professors have been claiming publicly that the recall is unconstitutional, because if Newsom is replaced, his replacement might only receive a plurality of the vote, meaning that opponents of Newsom had more voting power.

Two plaintiffs sued to stop the recall, and their request for a preliminary injunction against the recall was denied.

In the ruling (source: Capital Public Radio), U.S. District Judge Michael W. Fitzgerald, an appointee of Barack Obama, said:

First, as a matter of logic and common sense, it simply is not true that Plaintiff only gets to vote once while others get to vote twice. Plaintiff and all California voters have the opportunity to vote two distinct issues. The first is whether the Governor should be recalled. Plaintiff and all other voters have the opportunity but not the obligation to vote for a replacement candidate. Obviously, that vote only matters if a majority of the voters turn out to have voted “Yes.” Plaintiff and all other voters have the same equal vote as to who the Governor’s replacement should be. Voters do not need to vote on the recall in order to vote on a replacement candidate.

Plaintiff plainly feels disgruntled that a replacement candidate with a small plurality might replace a sitting governor who, based on a robust “No” vote, might well have beaten that same replacement candidate in a general election. As that may be, such disgruntlement raises no federal constitutional issues and certainly does not give the federal judiciary the right to halt the mammoth undertaking of this gubernatorial recall election. No one suggests that a state constitutional mechanism for recall is in itself unconstitutional. If the possibility for recall exists, then a means for selecting a successor must be specified. No doubt, it would be cheaper and simpler to replace a sitting governor with the lieutenant governor. But for over one hundred years, California has chosen a different procedure. The United States Constitution does not prevent that.

According to the Los Angeles Times, the plaintiff is appealing the ruling to the U.S. Court of Appeals for the Ninth Circuit.

The case is No. 2:21-cv-06558-MWF-KS, Clark v. Weber.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.


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