Federal court rejects lawsuit to stop election
A federal appeals court has rejected an attempt to block Tuesday’s recall election, rejecting a lawsuit that claimed the rules violate voters’ rights because Gov. Gavin Newsom’s successor could be chosen by a minority of voters on a ballot from which the governor is excluded.
The lawyer who filed the suit said Friday he would pursue the case after the election.
The suit, filed Aug. 13, argued that California’s recall election laws violate the “one person, one vote” constitutional standard set by the U.S. Supreme Court in 1964. If 51% of the voters decide to recall Newsom, the plaintiff noted, he would be replaced by the candidate with the most votes on the second part of the ballot, even if that candidate received 20% or less of the total.
The suit sought either to cancel the election or to add Newsom’s name to the second part of the ballot, which would have nullified the votes that were already cast and require a new election. But U.S. District Judge Michael Fitzgerald of Los Angeles rejected the claims Aug. 27, ruling that the state’s laws met constitutional standards, and the Ninth U.S. Circuit Court of Appeals in San Francisco refused to intervene Wednesday.
The plaintiff “has not shown that (Fitzgerald’s) order is clearly erroneous” and thus is not entitled to an injunction to halt the election, said the panel of Judges Michael Hawkins, Paul Watford and Kenneth Lee. The case remains before the court, however, with written arguments from both sides scheduled through mid-October, possibly followed by a hearing.
“The appeal is alive and well, and the plaintiff expects to prevail,” said Los Angeles attorney Stephen Yagman, who filed the suit on behalf of a voter. If Newsom is recalled, Yagman said, he will argue that the election was invalid and should be overturned, and if the governor remains in office, the current rules could still be invalidated for any future recall elections.
Newsom was not involved in the suit, and the state laws were defended in court by Secretary of State Shirley Weber, represented by Attorney General Rob Bonta, both of whom Newsom appointed to office.
In arguments to the appeals court, Bonta’s office said that excluding the incumbent governor from the list of replacement candidates in the second part of the ballot “ensures that an official who is recalled by a majority vote on the first issue is actually removed from office ... and not simultaneously reinstated by a mere plurality.”
Such a restriction “does not severely burden voting rights — to the contrary, it promotes the purpose of the right to recall,” the state’s lawyer said.