Two California voters have filed a federal lawsuit arguing that next month’s recall election targeting Democratic Gov. Gavin Newsom is unconstitutional because of the unusual way California structures its recalls.

Under state law, voters are presented with a two-part question that first asks if they want to recall the particular official. A second part asks who should replace the incumbent if a majority votes for the recall on the first question. However, because the law prevents the incumbent from also running in the replacement election, it’s possible, if not likely, that a free-for-all ballot with a large field of candidates will see the winner prevail with a small fraction of the total vote—and fewer votes than the number who voted to keep the incumbent on the first question.

The few polls that have been publicly released have generally shown Newsom prevailing, though several have found a tight race, and one recent survey had the recall succeeding. However, they do largely agree that should Newsom be recalled, hardline right-wing radio host Larry Elder would be the most likely candidate to replace him. With 46 candidates on the ballot, he would almost certainly win just a small plurality of the vote.

Berkeley School of Law dean Erwin Chemerinsky recently penned a New York Times op-ed arguing that the recall process was indeed unconstitutional. Still, his view has not been widely shared among legal experts, and plaintiffs will likely face a difficult challenge in court. Furthermore, ballots have already been mailed out, meaning it’s too late for a court to order a fix such as adding Newsom’s name to the second question on the ballot without causing a huge disruption to the election process.

Nevertheless, California’s recall election process has been widely criticized ever since the 2003 recall against former Democratic Gov. Gray Davis, and Democratic lawmakers could try to reform the system for future elections, particularly if Elder replaces Newsom while winning far fewer votes. Other states with recall laws allow the lieutenant governor to take over if the governor is recalled or simply hold a partisan election with primaries rather than use a yes/no format with two separate questions. Some states further require recall proponents to demonstrate that the officeholder has broken the law or violated the public trust somehow.

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This is a Creative Commons article. The original version of this article appeared here.

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