California Governor Gavin Newsom speaks at St. Mary's Center during a Stop The Recall rally ahead of the Republican-led recall election, in Oakland, California, U.S., September 11, 2021. REUTERS/Brittany Hosea-Small

(Reuters) - After the litigation shenanigans – and then sanctions – over false claims that the 2020 presidential election was rigged, rule-of-law fans should take heart in how another election challenge is unfolding in California.

Voters in the Golden State go to the polls on Tuesday to decide in a yes-or-no vote whether to recall Governor Gavin Newsom, a Democrat. If more than 50% of voters say yes, they’ll pick who among 46 candidates on the ballot’s second question will replace him. For this choice, a simple plurality will carry the day. Republican Larry Elder is leading the field.

The recall is not centered on a particular misdeed, but rather represents a collection of grievances, including from opponents of public health shutdowns and mask mandates, according to my Reuters colleagues. On Newsom's watch, California has also seen a rise in cases of homelessness and homicides, extreme drought and devastating wildfires.

As a California resident, I find the recall process deeply flawed. After all, it could allow Newsom to be booted from office in favor of another candidate who might not receive nearly as many votes.

That doesn’t seem very democratic. But is it unconstitutional of California Berkeley School of Law dean Erwin Chemerinsky and Aaron Edlin, a professor of law and economics at Berkeley, suggested as much in an op-ed published in the New York Times on Aug. 11.

Two days later, voters R.J. Beaber and A.W. Clark filed a lawsuit challenging the recall’s legitimacy on 14th Amendment grounds, arguing that it violates their equal protection and due process rights. (Beaber has since withdrawn as a plaintiff.)

The recall “creates a situation in which a larger plurality can support keeping the elected officer in office, while a smaller plurality has more say in whom the successor would be,” wrote plaintiffs lawyers Stephan Yagman and Joe Reichmann of Yagman + Reichmann in a complaint filed in Los Angeles federal court on Aug. 13.

But here’s where things get tricky.

The plaintiffs – to be clear, the ones who want to scuttle the recall and keep Newsom on the job – sued California Secretary of State Shirley Weber.

But Weber owes her job to Newsom. The governor nominated her to serve as the state’s top election official in late December after former Secretary of State Alex Padilla (who was elected to the position in 2014) was tapped by Newsom to fill the U.S. Senate seat vacated by Vice President Kamala Harris.

In defending the recall’s legitimacy, Weber is represented by the office of California Attorney General Rob Bonta.

Who also owes his job to Newsom.

In California, the AG (like the secretary of state) is normally elected. But Bonta, formerly a member of the state legislature and a deputy city attorney in San Francisco, was appointed to the job in March, when Xavier Becerra quit to become secretary of the U.S. Department of Health and Human Services.

Bonta’s name (along with Supervising Deputy Attorney General Heather Hoesterey and Deputy Attorney General John Echeverria) appears atop court papers defending the recall that targets his patron.

Hello fox? You’re needed at the henhouse.

Except that’s not how it’s playing out. So far, the AG’s office has mounted a winning defense, arguing that the recall is constitutional and should proceed as planned.

In an email, the AG's office said Bonta is "committed to fulfilling his statutory and constitutional obligations under California law, and will continue to do so."

And that's what has been happening.

In a terse order, a three-judge panel at the 9th U.S. Circuit Court of Appeals on Sept. 8 upheld U.S. District Judge Michael Fitzgerald’s order refusing to enjoin the election.

In court papers, state lawyers countered the plaintiff’s claim that the recall “gives to voters who vote to recall the Governor two votes – one to remove him and one to select a successor,” while those who want to keep him only get to vote once, since Newsom isn’t allowed to be a replacement candidate.

“The limitation ensures that an official who is recalled by a majority vote on the first issue is actually ‘removed’ from office," the AG office lawyers wrote. It also ensures that the recalled official is “not simultaneously reinstated by a mere plurality on the second issue. Such a result would frustrate the purpose of the right to recall and the intent of a majority of voters who vote for a recall.”

State lawyers went on to write: “All registered voters in California have the option of casting one vote on either issue on the recall election ballot, on both issues, or on neither issue."

This certainly strikes me as a robust defense, but I was curious if other lawyers involved in the case agreed, or if they felt the AG’s office might be litigating half-heartedly.

“We were concerned about that,” amicus curiae counsel Harmeet Dhillon of Dhillon Law Group, who represents pro-recall voters, told me. But to date, her fears have proven unfounded.

“The AG’s office did come in and defend the statute,” she said. “In all fairness, the AG’s office has got quite a few fine career professionals in it. I don’t think Rob Bonta is personally drafting the briefs.”

I asked plaintiff’s counsel the same thing. Stephen Yagman in an email sounded disappointed the AG’s office hasn’t gone easier on the case.

“My impression is that California Attorney General Rob Bonta is putting up a too-vigorous defense of California's recall law, but that is a shame because it demonstrates, once again, that Democrats eat their own, while Republicans eat Democrats,” he wrote.

Polls (to the extent they’re reliable) show Newsom surviving the recall, though Yagman said that even if the governor wins, it won’t moot his challenge to the law’s constitutionality.

While Yagman might wish the AG’s office wouldn’t fight so hard, I find it heartening, especially in today's hyper-partisan climate, that state lawyers are putting politics aside and doing their job.

Opinions expressed here are those of the author. Reuters News, under the Trust Principles, is committed to integrity, independence and freedom from bias.

Source: Reuters

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