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Recalls and the Constitution

When I first read about California Governor Gray Davis' lawsuit to delay and alter the upcoming recall election, I was confused. "After all," I thought to myself, "isn't the California constitution clear about recall elections?" So I looked up the relevant section of the constitution, and here it is:

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.

I went back and re-read the story of what Governor Davis is claiming in his lawsuit. Here's one of his claims:

Davis and his supporters... told the court they believe the rules regarding the recall ballot are unconstitutional. They contend that voters who want to keep the governor in office have to meet a higher standard than those who want him removed. To stay in office, Davis needs 50 percent of the vote. But if he is recalled, his successor needs a plurality of votes, not a majority.
This left me no less confused. Wasn't the California constitution crystal-clear on this issue? "The officer may not be a candidate." This led me to track down the actual lawsuit to understand the claim. Here's a relevant portion:
44. For purposes of equal protection analysis, Gray Davis is in all salient respects similarly situated to other individuals who will appear on the recall ballot as nominees for the office of Governor of the State of California. Yet, recall election procedures... require 50 percent of the vote for petitioner Davis to remain Governor, but only a plurality vote for any other nominated individual to become Governor. Further, petitioner Davis is barred from being considered with others who seek to be elected to the office of Governor if more than 50 percent of the voters vote "yes" on the recall question.

45. These procedures impose a direct, severe and disproportionate burden on the fundamental rights to vote and to associate for political purposes of those individuals who support Governor Davis. Petitioners have a right under the First and Fourteenth Amendments to the United States Constitution to have their votes counted on the same terms and with the same weight as the votes of individuals who support other candidates for Governor. Because there is no rational, substantial or compelling justification for the differential treatment imposed by these election procedures, petitioners are denied their right to equal protection of the law.

46. Petitioner Gray Davis wishes to be Governor of the State of California and to be considered for the position of Governor on the same basis and under the same terms as others who seek that office. The recall election procedures described above impose a direct, severe and disproportionate burden on petitioner Davis's right and ability to be considered as a candidate for Governor. Because there is no rational, substantial or compelling justification for the differential treatment imposed by these election procedures, petitioner Davis is denied his right to equal protection of the law.

47. The recall is not based upon any wrongdoing or malfeasance by petitioner Davis.

48. The recall election procedures... by requiring 50 percent of the vote for petitioner Davis to remain Governor but only a plurality vote for any other nominated individual to become Governor and by barring petitioner Davis from being considered with others who seek to succeed to the vacancy created by a "yes" vote on the recall question, violate the First and Fourteenth Amendments to the United States Constitution.

So what Governor Davis is saying is that the California constitution's recall procedures violate the equal protection clause of the Fourteenth Amendment. Now, I disagree with that, and it will be interesting to see what the California Supreme Court makes of the argument, but here's my real question: how can the governor of a state file suit against a constitution he or she is sworn to uphold? Here's the oath of office for California legislators and officers:

I do solemnly swear (or affirm, as the case may be,) that I will support the Constitution of the United States and the Constitution of the State of California, and that I will faithfully discharge the duties of the office of -------, according to the best of my ability.
I suppose what Governor Davis is saying is that he's sworn to uphold both constitutions, and feels that the national constitution must take precedence over his state's constitution. Since his state's constitution sets out rules that disfavor him from keeping office in the current situation, I can understand why he would say this... and I could make a moral argument for his position as well... but something about what he's doing strikes me the wrong way. It's as if the US President were to disavow the US Constitution.

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Frank has an excellent post regarding the legality of California Governor Gray Davis' attempt to be a candidate in his own recall election (if he is to be recalled). With all of the other stuff he has going on, I... [Read More]

Comments

I'm all for the federal constitution superceding state law when it results in greater protections of personal rights/freedom.

Hence I'm for medical marijuana experiments and against federal gun bans.

But Davis' argument that he or his supporters are being denied 14th amendment equal protection is not correct because every officeholder under recall is affected equally, by design apparently.

This just makes it easier to Total Recall Arnie in 60-80 days after he wins, if he wins.

I would have more respect for Governor Davis' position if, long before the recall, he had said something like, "As governor, I'm sworn to uphold the state constitution, and I will do so. However, I'm also sworn to uphold the federal constitution, which must take priority, and I believe that the recall provisions of the state constitution are in conflict with federal constitutional equal protection guarantees. I therefore propose reforming the state constitution to remedy these issues." But he didn't say that. He never, to the best of my knowledge, expressed any issues with Article 2, Section 15 of the California Constitution prior to learning that it would be used against him.

You have respect for the Governor?

I don't, but to answer your question why should he have expended political capital addressing a hypothetical?

This would have been an enormous kick to the hornets nest his opponents were already stirring up.

I look forward to recalling anyone, outside of the present Lt Governor, who manages to win from this silliness.

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