Various legal scholars have questioned the constitutionality of the California gubernatorial recall rules. See this Politico story. The second half of the story suggests that California should not have allowed any candidates to file to become the new Governor, because the state constitution says that when there is a vacancy in the office of Governor, the Lieutenant Governor becomes Governor. But, the precedent against that idea was set in the 2003 gubernatorial recall.
The problem in the first half of this article is caused by section 11381(c), which says, “No person whose recall is being sought may be a candidate to succeed himself or herself.” On the other hand, voters are still free to cast a write-in vote for Gavin Newsom, because section 11322 says write-in space should be on the ballot. The Newsom votes won’t be counted, but if there were a lawsuit involving the first problem mentioned in the Politico story, a court could order them to be counted.
THE 1976 RECALL STUFF PREVAILS OVER V-10 1974 GUV STUFF ???
STANDARD BAAAADE DRAFTING – REPEAL BY IMPLICATION ??? — NOT LIKED BY THE COURTS.
CA CONST
ARTICLE II VOTING, INITIATIVE AND REFERENDUM, AND RECALL [SECTION 1 – SEC. 20] ( Heading of Article 2 amended June 8, 1976, by Prop. 14. Res.Ch. 5, 1976. )
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SEC. 13.
Recall is the power of the electors to remove an elective officer.
(Sec. 13 added June 8, 1976, by Prop. 14. Res.Ch. 5, 1976.)
SEC. 14.
(a) Recall of a state officer is initiated by delivering to the Secretary of State a petition alleging reason for recall. Sufficiency of reason is not reviewable. Proponents have 160 days to file signed petitions.
(b) A petition to recall a statewide officer must be signed by electors equal in number to 12 percent of the last vote for the office, with signatures from each of 5 counties equal in number to 1 percent of the last vote for the office in the county. Signatures to recall Senators, members of the Assembly, members of the Board of Equalization, and judges of courts of appeal and trial courts must equal in number 20 percent of the last vote for the office.
(c) The Secretary of State shall maintain a continuous count of the signatures certified to that office.
(Sec. 14 added June 8, 1976, by Prop. 14. Res.Ch. 5, 1976, and Res.Ch. 24, Amdt. 3.)
SEC. 15.
(a) An election to determine whether to recall an officer and, if appropriate, to elect a successor shall be called by the Governor and held not less than 60 days nor more than 80 days from the date of certification of sufficient signatures.
(b) A recall election may be conducted within 180 days from the date of certification of sufficient signatures in order that the election may be consolidated with the next regularly scheduled election occurring wholly or partially within the same jurisdiction in which the recall election is held, if the number of voters eligible to vote at that next regularly scheduled election equal at least 50 percent of all the voters eligible to vote at the recall election.
(c) If the majority vote on the question is to recall, the officer is removed and, if there is a candidate, the candidate who receives a plurality is the successor. The officer may not be a candidate, nor shall there be any candidacy for an office filled pursuant to subdivision (d) of Section 16 of Article VI.
(Sec. 15 amended Nov. 8, 1994, by Prop. 183. Res.Ch. 59, 1994.)
SEC. 16.
The Legislature shall provide for circulation, filing, and certification of petitions, nomination of candidates, and the recall election.
(Sec. 16 added June 8, 1976, by Prop. 14. Res.Ch. 5, 1976.)
SEC. 17.
If recall of the Governor or Secretary of State is initiated, the recall duties of that office shall be performed by the Lieutenant Governor or Controller, respectively.
(Sec. 17 added June 8, 1976, by Prop. 14. Res.Ch. 5, 1976.)
SEC. 18.
A state officer who is not recalled shall be reimbursed by the State for the officer’s recall election expenses legally and personally incurred. Another recall may not be initiated against the officer until six months after the election.
(Sec. 18 added June 8, 1976, by Prop. 14. Res.Ch. 5, 1976, and Res.Ch. 24, Amdts. 4 and 5.)
SEC. 19.
The Legislature shall provide for recall of local officers. This section does not affect counties and cities whose charters provide for recall.
(Sec. 19 added June 8, 1976, by Prop. 14. Res.Ch. 5, 1976.)
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ARTICLE V EXECUTIVE [SECTION 1 – SEC. 14] ( Article 5 added Nov. 8, 1966, by Prop. 1-a. Res.Ch. 139, 1966 1st Ex. Sess. )
SEC. 10.
The Lieutenant Governor shall become Governor when a vacancy occurs in the office of Governor.
The Lieutenant Governor shall act as Governor during the impeachment, absence from the State, or other temporary disability of the Governor or of a Governor-elect who fails to take office.
The Legislature shall provide an order of precedence after the Lieutenant Governor for succession to the office of Governor and for the temporary exercise of the Governor’s functions.
The Supreme Court has exclusive jurisdiction to determine all questions arising under this section.
Standing to raise questions of vacancy or temporary disability is vested exclusively in a body provided by statute.
(Sec. 10 amended Nov. 5, 1974, by Prop. 11. Res.Ch. 96, 1974.)
There is a thorough rebuttal of Chemerinksy and Elder here:
https://verdict.justia.com/2021/08/16/deja-vu-all-over-again-californias-upcoming-recall-vote-for-governor-is-resurfacing-some-old-and-flawed-constitutional-critiques
Sorry, the second author of the NY Times article is Edlin rather than Elder.
Is the Berkeley law school for those who can’t get into Hastings?
I see to recall Chemerinsky from some other flawed legal argument. And Joe Mathews is the columnist who tried to remove the American Independent party from the ballot.
Jim – based on having read a number of columns by Erwin Chimerinsky, I have come to believe that Berkeley Law School is for people who cannot get into continuation school.
The election is being stolen by the communist femocrats.