If California’s Recall Is Illegal, So Was Jon Ossoff’s Election in Georgia

Gov. Gavin Newsom speaks at Universal Studios Hollywood in Universal City, Los Angeles, Calif., June 15, 2021. (Mario Anzuoni/Reuters)

One academic cries ‘unconstitutional,’ but we won’t hold our breath for a similar pronouncement over Georgia’s peculiar system.

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One academic cries ‘unconstitutional,’ but we won’t hold our breath for a similar pronouncement over Georgia’s peculiar system.

NRPLUS MEMBER ARTICLE I n the New York Times, Professor Erwin Chemerinsky argues that California’s recall system is not merely a bad idea, it’s illegal. “The most basic principles of democracy,” Chemerinsky writes,

are that the candidate who gets the most votes is elected and that every voter gets an equal say in an election’s outcome. The California system for voting in a recall election violates these principles and should be declared unconstitutional.

Specifically, Chemerinsky notes that California employs a two-step system — in which the first vote is to recall or not recall, and the second is to choose a replacement — and contends that this creates a problem, because

by conducting the recall election in this way, Mr. Newsom can receive far more votes than any other candidate but still be removed from office. Many focus on how unfair this structure is to the governor, but consider instead how unfair it is to the voters who support him.

He continues:

After Chief Justice Earl Warren retired in 1968, he remarked that of all the cases decided during his time on the court, the one-person one-vote rulings were the most important because they protected such a fundamental aspect of the democratic process.

The California recall election, as structured, violates that fundamental principle. If Mr. Newsom is favored by a plurality of the voters, but someone else is elected, then his voters are denied equal protection. Their votes have less influence in determining the outcome of the election.

If this is true, then I can only assume that Chemerinsky’s next piece will be on the unconstitutional election of Jon Ossoff in Georgia — an election that provided the Democratic Party with its current Senate majority (the Senate is tied 50–50, but VP Harris is the tie-breaker), and that may well enable the party to make considerable changes to the government of the United States.

Like California, the state of Georgia also employs a two-step process. In Georgia, though, that system applies to all elections, holding that if a candidate in the first round doesn’t acquire 50 percent of the total vote, the two best-performing candidates must proceed to a runoff. Straight off the bat, this violates Chemerinsky’s standard that if a candidate “is favored by a plurality of the voters, but someone else is elected, then his voters are denied equal protection.” In November 2020, David Perdue received 2,462,617 votes, while the runner-up, Jon Ossoff, received 2,374,519. In almost any other state, Perdue would have been declared the winner. In Georgia, he was not. Chemerinsky writes that, in California, a candidate can “receive far more votes than any other candidate but still be removed from office.” Well, this is what happened to David Perdue. Is that unconstitutional, too?

One can’t even play games by comparing the numbers in aggregate. In the second step in Georgia — the recall election — Perdue received fewer votes than Ossoff. On aggregate, though, Perdue still came out ahead. If we combine the elections, Perdue got 4,677,596 votes while Ossoff got 4,644,442. Because the votes were separate, this isn’t supposed to matter. But if Chemerinsky is correct that “the most basic principles of democracy are that the candidate who gets the most votes is elected,” that second election should never have been held in the first place. Indeed, it should be struck down as “unfair . . . to the voters who support” Perdue. And if it should have been held — if, that is, we are supposed to compare the combined tallies from the first and second steps, as Chemerinsky does in order to draw his conclusion — then Perdue was the clear winner of the race. Unconstitutional, right?

In making his case, Chemerinsky cites the equal-protection cases that the Supreme Court decided under Earl Warren. In particular, Chemerinsky points to the “core constitutional principle that has been followed for over 60 years: Every voter should have an equal ability to influence the outcome of the election” — otherwise known as the “one person, one vote” standard. Well, Georgia’s runoff system is the direct result of the first-ever case outlining that standard, Gray v. Sanders, which, in 1963, struck down Georgia’s “county unit system” while ruling that “the concept of political equality . . . can mean only one thing — one person, one vote.” In response to this decision, Georgia implemented a system contrived by a segregationist named Denmark Groover that was designed, by his own admission, to prevent “blocs” of voters (by which he meant blacks) sticking together and winning elections with a mere plurality. Unconstitutional?

My point here is not, of course, that California’s system is unconstitutional or that Georgia’s system is unconstitutional — although I strongly dislike both — but that these sorts of Hail Mary arguments only ever seem to appear when it is possible that the Democratic Party might be inconvenienced. When a Democrat might suffer in a recall, it’s unconstitutional. When the Senate might block the president’s agenda, it’s unconstitutional — and so is the filibuster. If a Republican wins the Electoral College but not the popular vote . . . well, you get the idea.

Substantively, Chemerinsky’s problem is that he is treating California’s process as if it represents a single election with two steps. But it doesn’t; it includes two. First, Californians decide whether they wish to recall their governor. Second, if they have indicated that they do wish to do that, they are obliged to fill the vacancy they’ve created. As is the case in Georgia, both of these discrete elections employ the “one man, one vote” system, and both are wholly legitimate on their own terms. Where the two elections differ — in both states — is in the questions they pose to the voting public. By comparing the vote totals accrued by a candidate during a disqualification election to the vote totals accrued by the candidates hoping to replace the person who was just disqualified, Chemerinsky is setting up a nonsensical logical chain. Clearly, if it were not for the results of the first election (to recall the governor, and thereby to create a void that needs filling), there would be no second election at all.

Still, Professor Chemerinsky seems convinced, and who am I to question someone as esteemed as he? So let’s do this, professor. I look forward to reading your impending brief on behalf of the much-wronged David Perdue, victim of an unconstitutional system, and Rightful Heir to a U.S. Senate seat from Georgia.