Amar and Brownstein Findlaw column on recall Following up on my earlier Findlaw column this week, Professors Vic Amar and Alan Brownstein raise some provocative constitutional questions about the California recall. A few quick reactions:
(1) Amar and Brownstein raise an equal protection argument that's been floating around for a few weeks. Here's an excerpt:

[S]uppose that 49% of the voters favor keeping Davis, but he is recalled because more than 50% vote against him. Suppose further that there are successor candidates on the ballot, and that the leading vote getter among them - call him candidate A (for Arnold?) - gets only 10% of the successor vote. Can it be that a candidate with 10% support will oust a governor with 49% support?

If so, could this result be squared with the venerable constitutional principle of one-person-one-vote, where everyone's vote is supposed to be counted equally? And what about Bush v. Gore, in which the U.S. Supreme Court reaffirmed that the Equal Protection Clause of the Fourteenth Amendment requires that each voter's ballot be treated similarly to all others'?

Before Bush v. Gore, I think this argument would have been laughed out of court. After the case, I think it is a colorable argument, but one that probably should not succeed--though for different reasons from those raised by the professors. The two parts of the recall ask different questions. The first part asks if a majority wants someone---anyone---to replace Davis. If the answer to that question is yes, only then does the second part come into play---who should the replacement be. It does not appear to value one person's vote over that of another to use a plurality rule after a majority have voted that a plurality should control the second part of the ballot. But I agree that Bush v. Gore is sufficiently murky that this kind of claim before a sympathetic judge could get serious consideration.

(2) Here is the second provocative point raised by Amar and Brownstein:

[California Elections Code s]ection 11382 provides that "No vote cast in the recall election shall be counted for any candidate unless the voter also voted for or against the recall of the officer sought to be recalled." Put simply, this requirement conditions the right to vote for a successor to a recalled official on the voter's willingness to weigh in on the recall itself, by voting for or against the recall measure. But what if the voter's ideological preference was to abstain from voting on that issue?

That's where [Buckley v. American Constitutional Law Foundation become relevant once again. Recall that ACLF held that Colorado could not constitutionally burden participation in political conversations by conditioning signature gathering for initiative petitions on an individual's registration as a voter. By the same logic, courts may well hold that California may not constitutionally condition the right to vote on an individual's prior voting history.

I am skeptical of this claim as well. On this point, ACLF is in tension with other United States Supreme Court cases such as Burdick v. Takushi, 528 U.S. 428 (1992) rejecting the idea that voting has expressive value, holding that ballots are for choosing candidates, not for political expression. (For more on expressive voting, see Adam Winkler, Note, Expressive Voting, 68 NYU Law Review 330 (1993)). I don't think the part of ACLF that Amar and Brownstein refer to would hold up to further Supreme Court scrutiny, though a lower court following just ACLF could well strike down the California statute.

More news on post-Florida investigation See this report in Florida's Sun-Sentinel.

Today's recall coverage See stories in the New York Times; the Los Angeles Times (also here on the legal issues); the Washington Post; the Sacramento Bee (with Dan Walters' follow-up column on Bustamante); the San Jose Mercury News (and here); the Contra Costa Times; and the San Francisco Chronicle (on campaign finance aspects).

"Democrats' FEC Choice Challenges McCain-Feingold" See this Washington Post report.

Shelley posts rules for governorship nominations, at least as he interprets them See here. Thanks to Dan Weintraub for the pointer.

"Fla. to Restore Felons' Voting Rights" A.P. offers this report.

-- 
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlaw.blogspot.com