Judge tosses California recall lawsuit, election to continue as scheduled

(CN) — A last-minute bid to disrupt the California recall collapsed on Friday as a federal judge said there was “no chance” a lone voter’s lawsuit could delay an election already underway.       

In swift fashion U.S. District Judge Michael Fitzgerald denied a motion for preliminary injunction brought by an admitted support of Governor Gavin Newsom and allowed the election scheduled for Sept. 14 to continue. The judge said the equal protection lawsuit, filed as county elections officials were putting the finishing touches on 22 million mail ballots, flopped entirely.

“Plaintiff’s federal constitutional rights simply are not violated,” Fitzgerald said of California’s recall framework. “The delay in filing this lawsuit means that plaintiff seeks to halt an election that, in fact, has already begun, which is a strong indicator that equitable factors are not present.”   

A voter named A.W. Clark filed the peculiar lawsuit two weeks ago and asked a federal court in Los Angeles to either stop the election or force the state to change its longstanding recall framework. Clark argued California’s procedure violates the equal protection clause by “diluting” the votes of Newsom supporters as they are unable to vote for the incumbent on the replacement question.

The ballots that have now reached the mailboxes of California’s over 22 million registered voters contain just two questions: "Should Newsom be removed from office?” and “If yes, who should take his place?”

If a simple majority answers yes to the recall, the candidate receiving the most votes on the second question will finish out Newsom’s term which ends on Jan. 2, 2023, and the incumbent is not listed on the replacement question. If a majority votes no, the recall is defeated.

In court filings Clark and his attorneys argued that because Newsom isn’t allowed in the replacement pool, the state’s framework defies the U.S. Constitution.

“The recall provision in the California Constitution… does not establish a way for votes to be of equal weight and power, since the state officer sought to be recalled specifically is prohibited for running and cannot run to replace her/himself,” Clark argued in his complaint.

California Secretary of State Shirley Weber, the lone defendant named in the case, countered the system affords every registered voter an equal chance to vote on either question. She added that the plaintiff’s requested injunction would “substantially interfere” with an election that stands to cost taxpayers over $275 million as it is.

After denying the plaintiff’s request for oral arguments, the Barack Obama appointee delivered Weber and the intervening recall proponents a resounding legal victory.

“It cannot be doubted that the law and facts are not ‘clearly’ on plaintiff’s side,” Fitzgerald said in a 13-page ruling. “The mandatory nature of this injunction means that plaintiff could not possibly prevail.”

The lawsuit, filed shortly after prominent legal scholar Erwin Chemerinsky ripped the state’s rules as unconstitutional in an op-ed, and the extreme level of relief sought was viewed as a long shot from the start by legal and political experts.  

Pundits noted Clark’s attorneys were inexperienced in handling election matters and reiterated federal courts are typically hesitant to intervene in state elections, especially matters filed so close to election day.

Ruling from the papers, Fitzgerald rejected Clark’s chief contention that the recall could wrongly allow a replacement candidate to become governor with just a plurality of the votes. The judge added while it might be “cheaper and simpler” for California to replace the governor with the lieutenant governor, the recall rules crafted over 110 years ago aren’t unconstitutional.

“California voters who are dubious of a ‘plurality lottery’ among the 46 replacement candidates have the opportunity to vote ‘no,’” the ruling continues.

Friday’s decision means the closely watched and suddenly tightening recall will continue as planned.

Recent polls show burgeoning support for the recall with even the Newsom campaign admitting in a recent fundraising blast the race is “very close.” There are no prominent Democratic candidates in the replacement field while conservative talk show host Larry Elder is considered the favorite among the GOP hopefuls.

Fitzgerald declined to consider the Newsom supporter’s second argument that the recall rules don’t align with the state’s so-called “Top Two” scheme for electing statewide candidates because it doesn’t allow for a true run-off in the event an incumbent is recalled. The judge noted the issue doesn’t contain federal constitutional issues and should be tried in state court.

Weber's office said in an email it will continue prepping for the election and that Fitzgerald's decision was the "proper outcome."

While Fitzgerald predicted an appeal would likely be unsuccessful, he didn’t dismiss the case and gave Clark until Sept. 21 to convince him the case should go on.  

Late Friday Clark and his attorneys at Yagman Reichmann did indeed appeal the district court's decision and are hoping the Ninth Circuit will expedite the case.

Harmeet Dhillon, who represented a group of voters that intervened on behalf of the state, celebrated the decision on Twitter.

“We stood up for participatory democracy in California, and the people won!,” she said.  

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