• August 16, 2021

Skelton: California’s withdrawal process must be reformed

Readers are sending out emails saying they plan to write Governor Gavin Newsom’s name as the “replacement” governor if called. Forget this.

You could also write on the Golden Gate Bridge. The vote will not be counted.

Toppling the governor and at the same time crowning him would be the last contradiction of an electorate. So it is sensibly not allowed by the California Constitution.

But maybe that violates the U.S. Constitution, says UC Berkeley Law School dean Erwin Chemerinsky.

I asked the constitutional scholar about possible legal flaws in California’s 110-year revocation system.

“I think there is an argument about keeping Newsom’s name off” the list of replacement candidates, Chemerinsky responded. “There is the right to have access to the ballot to be a candidate. Arguably preventing Newsom from being listed violates his constitutional right. “

Nearly four dozen would-be governors are on the September 14 impeachment ballot, and only a handful of them actually run. But the owner’s name is not included because he is not allowed to replace himself if called.

Newsom would have to file a lawsuit in federal court to remedy his exclusion. But it hasn’t. And the question seems moot for this election.

However, Chemerinsky is sure of a flaw. He believes that California’s withdrawal process violates the United States Constitution for another reason.

It is this:

Newsom could be remembered on the first question on the ballot by a mere majority of votes. That means it could receive 49.9% of the vote and still be discarded. Then, on the second question on the ballot, his successor could be chosen from the big field by a small plurality of, say, just 25%.

Thus, Newsom could receive almost twice as many votes as the winner, but still lose.

Of course, those are votes on two separate questions: Should Newsom step down? And if so, who should replace it?

“But it is a single ballot,” says Chemerinsky. “They are the only two questions on the ballot. And they are related. “

Doesn’t the Constitution of the United States give states the right to elect officials in any way they want?

“States can choose how to select a governor as long as it is compatible with the Constitution of the United States,” replies the professor. “Part of the constitutional requirement is that all people must have equal influence in elections.”

He cites the US Supreme Court rulings of “one person, one vote” from the early 1960s.

Chemerinsky and UC Berkeley law professor Aaron Edlin wrote a guest essay from the New York Times last week stating that California’s impeachment system “is not simply absurd and undemocratic. It is unconstitutional. “

“The Constitution simply does not allow a governor to be replaced by a less popular candidate,” they stated.

Again, Newsom would have to file a lawsuit to challenge California law. And there is no sign that he wants to do that.

State Senator Ben Allen (D-Santa Monica) introduced a constitutional amendment in December that would have allowed an impeachment target to be placed on the ballot as a replacement candidate. But Allen did not push the legislation.

After this election, there should be a great effort to create recall reforms.

To begin with, we should not elect a replacement governor. We should keep it simple. The lieutenant governor, now a Democrat Eleni Kounalakis, should replace the retired governor. After all, that’s the only real role of a lieutenant governor: succeeding a governor who resigns or dies.

In this case, there will be regular elections for governor next year anyway. But if there were not, a special election could be held to complete the remainder of the retired governor’s term, just as in the United States Senate vacancies.

In New York, Lieutenant Governor Kathy Hochul is about to succeed resigning Governor Andrew Cuomo.

“It would take a lot of recall antics if we treated it as a resignation and if the lieutenant governor succeeded the governor,” says Rose Kapolczynski, a veteran Democratic consultant.

If the governor were called, he says, “then he could have an election in which Democrats and Republicans were free to run: a clear vacancy and a fair fight.”

Republicans, outnumbered by Democrats nearly 2 to 1 in California, saw very little chance of beating Newsom in the regular 2022 election, Kapolczynski says. Therefore, they backed a recall “to manipulate the system and create a low-turnout election in which they have a better chance.”

“That would go away if he separated the impeachment election from a replacement election.”

Longtime Democratic consultant Larry Levine agrees that the lieutenant governor should succeed the retired governor.

“Retirement [system] it is a recipe for mischief. So why not remove the incentive? ” he says.

Levine also advocates increasing the number of voter signatures required to qualify a ballot revocation measure. Now, it is 12% of the votes cast in the last elections for office. I would increase it to at least 20%.

It is a way of “ensuring that future recalls are motivated broad-based citizen efforts to cure embezzlement or corruption and not partisan exercises to overthrow a member of the opposition party,” says Levine.

For Newsom’s retirement, approximately 1.5 million signatures were required. Under Levine’s proposal, about 2.5 million would have been needed. The sponsors of the retreat probably would have come up short.

“I think the way our impeachment system is structured is bad for the state and bad for democracy,” says Kapolczynski.

It is also bad for taxpayers. The impeachment election will cost them $ 276 million.

Don’t waste anything writing on Newsom’s behalf to succeed yourself.

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