Lawsuit challenges California recall process ahead of September election

A federal lawsuit is seeking to either halt or at least drastically alter the Sept. 14 recall election that will determine whether California Gov. Gavin NewsomGavin NewsomEquilibrium/Sustainability — Presented by Southern Company — Nations plan to pump oil despite net zero promises California Gov. Newsom issues executive order to address supply chain congestion Final California recall count shows Newsom with tally identical to 2018 MORE (D) will remain in office.

The lawsuit, filed by two voters in U.S. District Court for the Central District of California, argues that the recall election in its current form is unconstitutional because it gives unequal weight to voters who support Newsom’s ouster, violating the principle of “one person, one vote.”

At issue is how the recall ballot is structured. Voters will be asked two questions: whether Newsom should be recalled, and which candidate should replace him if he is recalled. Newsom’s name is not currently allowed to appear on the second question as a candidate.

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The lawsuit argues that Newsom could receive more votes than any other candidate, but still be removed from office and replaced with someone who received fewer votes. The California Democratic Party is urging voters to cast their ballot against the recall, while leaving the second question about a potential replacement for Newsom blank. 

“Thus, although Gov. Newsom could receive more votes against his recall on issue 1, still a candidate who seeks to replace him and who receives fewer votes could be chosen to be Governor,” the lawsuit reads. 

That, the lawsuit argues, would violate the U.S. Constitution’s guarantee of equal protection under the law.  

“This process is violative of the Equal Protection and Due Process Clauses of the Constitution's Fourteenth Amendment, because it flies in the face of the federal legal principle of ‘one person, one vote,’ and gives to voters who vote to recall the Governor two votes – one to remove him and one to select a successor, but limits to only one vote the franchise of those who vote to retain him and that he not be recalled, so that a person who votes for recall has twice as many votes as a person who votes against recall,” it reads.

The lawsuit asks that the court either call off the recall election entirely or order that Newsom’s name be added to the list of replacement candidates. 

It’s not clear if California Secretary of State Shirley Weber will defend the recall process against the lawsuit. She has defended it against other legal challenges in the past, including against a lawsuit by Newsom that sought to identify him as a Democrat on the recall ballot.

Weber, who was appointed by Newsom to replace Sen. Alex PadillaAlex PadillaGOP blocks Senate Democrats' revised elections bill Progressives push back on decision to shrink Biden's paid family leave program Climate activists target Manchin MORE (D-Calif.) earlier this year, is named as the defendant in the lawsuit.