LOS ANGELES, CA – It is no surprise that after a highly public failed attempt at keeping some candidates off the ballot, the Secretary of State now knows she’s on a tight leash and is defending the recall election. Other activists on the left, however, worried about the recall being essentially tied in public polling, would rather not have the election in the first place.
Therefore, there is a lawsuit now that has gone up the courts. It alleges that voters are being disenfranchised if the eventual winner of the replacement question (Question 2) wins by a plurality vote. This is also what it looked like in 2003 but in the end, Arnold Schwarzenegger won by just under 50 percent. In his re-election campaign in 2006, he won by 20 points.
Under the current rules, they claim that the votes for the replacement governor hold two or three times the weight compared to those who are voting “no” on recall to keep the governor. This supposedly violates the “one person, one vote” principle of the Constitution. The easy rebuttal to this is that there are two separate elections: question 1 (to fire or keep the current governor) and question 2, to choose the replacement governor. It is inappropriate to compare the totals of question 1 versus that of 2.
Despite some right wingers having meltdowns over this lawsuit, many who understand the system and how our civics work, are calm about the situation. It is not a shock that the lower courts in California have many left leaning judges. However, as this case goes up the food chain, the limits to the progress of this suit are inevitable. Even the 9th Circuit courts are more conservative now, with a more even split than in the past. This lawsuit is going up federal courts, not the state one.
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But perhaps the strongest argument for the pending failure of this lawsuit is timeliness. Millions of ballots have already been sent back and people are voting. It would be very difficult for a lawsuit seeking to change the rules midstream to be reversed. If anything, it could affect future recall elections.
However, this system has worked for decades now and the fact that there is a first question on recall to confirm the voters’ intentions and a separate second question to choose the replacement is a strong argument that a plurality vote is constitutional. Most importantly, this is not done in a timely manner. Why bring all this up now, two weeks before the election when there were many months to audit the recall process? Courts will not look favorably on this request, especially after the hubris the “No” side displayed for months before the polling tightened. Many millions of Californians will be disenfranchised if the rules were changed midstream. It’s simply, poor form.