Ninth Circuit Upholds California's Recall Process

Steven D. Schwinn, University of Illinois Chicago School of Law

The Ninth Circuit this week rebuffed a challenge to California's recall process. The ruling means that the process stays in place.

The case, Clark v. Weber, arose when a voter who opposed the recall of Governor Newsom argued that the state's recall process violated the Constitution. Under the process, voters first vote whether to recall the official. If a majority votes to recall, the official is recalled. Voters next vote for a replacement (in case the first vote results in a recall). Any candidate for replacement who gets a plurality wins (again, assuming that the first vote results in a recall). The incumbent cannot run as a candidate in that second vote.

Clark argued that the process violated one-person-one-vote, because, as a Newsom supporter, he only had one vote (in the first part of the process), whereas voters who opposed Newsom had two votes. He also argued that an incumbent must receive a majority to stay in office, whereas a challenger needs to get only a plurality.

The court rejected both theories. The court said that California's process is really two separate elections run together, and that everyone gets a vote in both. To the extent that Clark's choices don't include the incumbent in the second election, the court said that this wasn't a severe restriction on the right to vote. (The court analogized the exclusion of the incumbent to term-limit laws, which the courts have upheld). The court said that the state easily justified this restriction based on its important interest in maintaining the efficacy of its recall procedure.