Column: Vote no; Constitutional corruption in California election


Photo credit: Charlotte Tragos

The California sample voter ballot provides a sample of the September ballot question. The California recall election is being described as unconstitutional by legal scholars under the US Constitution and California State Constitution.

By Charlotte Tragos, Columnist

I’ve been phone-banking for Governor Gavin Newsom this summer, and most of the people I spoke with don’t seem to grasp the importance of voting in the upcoming Republican-led effort to recall our governor. Voter apathy and a flawed recall system could cause the Democratic party to lose control of our deep blue state. It is so important that Democrats show up at the polls on September 14 to vote NO on the first ballot question and leave the second question blank.

First, I will explain the very real scenario that would enable a minority of voters to put the leading Republican contender, Larry Elder, into the governor’s seat. The format of the recall ballot is deceptively simple. The first ballot question asks voters to answer YES or NO to whether Governor Newsom should be impeached and removed from office. The second question then asks voters to select a replacement governor from a list of 41 contenders, not including Governor Newsom.

Unfortunately, with the pandemic still raging and the attention on students returning to in-person schooling, it’s predictable that there will be a low turnout for this election. It’s not hard to imagine a successful recall when the people motivating the recall gathered 1,495,709 signatures which, represent more voters than the typical special election participation of 6% or according to Secretary of State Padias 2020 Report of 22,047,847 registered voters, 1,322,847 voters. In a large field of contenders, a candidate could potentially win with as little as 10% of the vote from a 3% turn-out, and with only 66,142 votes, they would replace Governor Newsom who won his election in 2018 with 100 times more votes or 7,721,410 votes. In other words, it is very possible for a Republican candidate to win with less proportional support. 

Elder is the frontrunner among a diverse pool of Republican candidates, a talk radio host with a conservative podcast called “The Larry Elder Show.”

I’m not a fan.

Elder is a misinformation machine, a Trump sycophant and a danger to the progressive humanistic values that have come to define our current generation of Californians.

In an interview with the local Sacramento Bee Elder said, “I don’t believe that the police are disposed to using deadly force against Black people … this business about the police engaging in systemic racism is false. It’s a lie.”

It’s a playbook Trump move to take an extremist view on a divisive issue like apparent police brutality. Using a soft dog-whistle strategy, Elder uses a statement of support for the police to embed hateful rhetoric against Black people. His denial of racism is a rallying cry for all those Americans who harbor racial resentment because their whiteness is being disadvantaged by an institutional pursuit of racial justice.

I will try to analyze the constitutionality of the recall system itself. I am persuaded by the argument advanced by legal scholars Erwin Chemerinsky and Aaron S. Edlin in their article “There Is a Problem With California’s Recall. It’s Unconstitutional.” Chemerinsky and Edlin argue that the recall election is unconstitutional because it violates the one-person-one-vote principle. This principle underscores the value of equal representation and was particularly relevant during the Civil Rights movement of the 1960’s.

Chemerinsky and Edlin quote Chief Justice Earl Warren, who said, “One-vote rulings were the most important because they protected such a fundamental aspect of the democratic process.”

Chemerinsky and Edlin posit if Governor Newsom were to be recalled with the successful alternative candidate obtaining fewer votes than NO votes, the one-vote, one-person guarantee has been violated.

One point not addressed by Chemerinsky and Edlin is the reality of the conservative U.S. Supreme Court, who might use the opportunity of a challenge under the U.S. Constitution to cut back on the one-person, one-vote principle. If, however, the California Supreme Court had jurisdiction, GovernorNewsom would have an easier path.

I will try to review state compared to federal jurisdiction in case democrats try to contest the recall election results. The California Constitution actually provides more specific language on the one-person, one-vote principle than the Constitution.

Within the equal protection clause, it states, “A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws.”

The people of California are denied their equal voting rights when a gubernatorial recall is buried inside a low participation special election formatted to produce a winner with potentially minuscule support that doesn’t come close to representing the majority of the California electorate. We have little precedent for this interpretation of the California equal protection clause. This challenge could be precedent-setting and vitally important.

I will provide resources for service and engagement in this election. Unfortunately, the outcome of this election seems clear: Governor Newsom will lose and the case will go to the courts, but grassroots organizing always challenges the system. There are many opportunities to get involved and spread the word to vote NO on September 14.

In partnership with the California Democratic Party and Stop the Republican Recall, the Grassroots Democrats HQ is hosting a phone banking event. Through an easy process, you can connect with voters directly, speaking to them about the importance of showing up for the election. Sign up here. Organizations like Stop the Republican Recall offer more opportunities to phone bank.

Otherwise, take action with California Democratic Party through their mobilize page. Most importantly, tell your friends, parents, neighbors and teachers to vote NO. The California Democratic Party suggests leaving the second option blank. That makes sense, but so does voting for someone other than Larry Elder.

In this recall election, barriers stand in the way of the democratic, constitutional principle that the majority rules. We must come together and fight against an election that threatens to suppress the will of the people.