Californian reminder: the danger of fortuitous claims of unconstitutionality

Amid a global health pandemic, uncontrolled fires and floods, massive earthquakes and justified fears of Taliban repression in the wake of our vile and failed exit from Afghanistan, one of the deans most respected law firm in our country, Erwin Chemerinsky of the University of California, Berkeley, School of Law, proclaiming that the California electoral process to recall a governor is “unconstitutional.”

Despite the textual commitment of the US Constitution to regulate “the time, place and manner” of state and national elections to states (Article I, Section 4), Chemerinsky asserts that the California recall process is contrary to the equal protection clause.

His declaration of constitutional invalidity is just unjudged and overbroad speculation, and the fanciful claim raised just weeks before California voters questioned whether to recall Governor Gavin Newsom has spawned a disputing parallel lawsuit the reminder. In this, Chemerinsky’s argument bears an uncomfortable similarity to the repeated assertions of the ancients. President TrumpDonald TrumpDemocrats sound the alarm over loss in Connecticut suburb Abbott Laboratories orders employees to dispose of COVID-19 testing equipment promptly Sunday shows sneak peek: chaos in Kabul hampers US evacuation efforts United PLUS which he uses to this day to challenge the 2020 presidential election.

The dean’s argument is more sophisticated than that of the former president, and it touches on different topics, but Chemerinsky’s argument is similar in that the two claims of unconstitutionality have been presented to the public as if the question could be and had been settled from history. , text or previous. This was certainly not true of Trump’s assertion that giving credit to state court orders violated the meaning of Article II which empowers the state legislature, not the courts of the state. State, to define the rules for the selection of voters in their respective States.

Chemerinsky argues that while California law allows for the possibility that a successor to a dismissed governor may take office with fewer votes than the recalled person, the result is unconstitutional. Like Trump’s argument, the issue has not been settled by academics or the Supreme Court.

Which constitutional provision do Chemerinsky and his co-author claim to be violated? None are convincingly identified. The best the dean and his friend from the Berkeley economics department can muster is a strong analogy to Chief Justice Earl Warren’s “one person, one vote” principle implicit in the equal protection clause.

Not so fast. The Warren-era misallocation cases mentioned by Dean dealt with the intentional failure of state legislatures to maintain state constituencies of roughly equal size. Just beneath the surface of this neglect was a tragic history of racial sentiment that consistently prevented people of color from leaving office.

No such malicious intent is behind California’s simple recall provision that, for more than a century, has left voters deeply disappointed with their governor’s administrative performance and ability to democratically express their support. dissatisfaction. California law does not apply as a sinister means of racial exclusion, but as a reminder that the election does not preclude the continued evaluation of democratically elected officials.

The recall poses two questions: should the incumbent governor be removed from office? And if a majority answers yes, a second question is: who will take the post for the remainder of the dismissed governor’s term? Logically, the law does not invite the governor removed in step 1 to be his own replacement in step 2.

Chemerinsky asks us to find in this good sense a denial of equality sufficient to set aside the respect that the founders had for the regulation of the state legislature on the “time, place or mode” of elections or even the power of Congress to make exceptions to such a state. regulation. The dean, flying the flag of democracy, apparently prefers judicial intervention to deference to the people or their representatives.

There is no basis for asserting the unconstitutionality of the California process. If the voters “throw the tramps” after a reminder drawn up on the initiative of a petition, they would logically not invite, in the same electoral breath, the tramps again.

The likelihood that the initial question for or against the recall results in a majority for either point of view while the second question, due to the multiplicity of candidates, will likely be expressed as a plurality is of no consequence. Indeed, the first answer can only be expressed as a majority result – the majority is either in favor of deletion or not.

On the second question, Chemerinsky’s suggestion that the dismissed governor should appear on the replacement ballot is less a respect for constitutional equality than a political demand for two bites of the apple. The double deduction has its own nominal constitutional infirmity since no other candidate could have claimed such an advantage.

Whether the dominant outcome might be expected to be a plurality, rather than an absolute majority, does not matter. The results of plurality can be found throughout our republic. Super majorities are needed to overcome presidential vetoes; the Supreme Court can be divided into 4-3-2, but the opinion of the plurality of four judges can state the rule of the case. Pluralities exist in the rules of the House and the Senate, and even in many ways in which state legislatures constitute their own membership (eg, multi-member constituencies).

The ongoing calamities mentioned at the beginning of this essay naturally demand most of our attention, but we must be mindful of arguments made by respected figures that might unintentionally weaken our constitutional structure. It has become far too easy to throw the word “unconstitutional” into partisan debate. Chemerinsky and his co-author, Aaron S. Edlin, have the right to disagree with each other or with others about Newsom’s performance as governor of California, but they do not have the right. to evoke weighty constitutional claims which effectively place the constitution at war with itself.

Douglas Kmiec is Emeritus Professor of Constitutional Law at Pepperdine University School of Law and founder of the Notre Dame Journal of Law, Ethics and Public Policy. He served as the US Ambassador to Malta from 2009-2011 and headed the Office of Legal Counsel during the Reagan and George HW Bush administrations. Follow him on Twitter @dougkmiec.

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