A. CLARK V. SHIRLEY WEBER, No. 21-56337 (9th Cir. 2022)
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Plaintiff filed a lawsuit in August 2021 to halt the September 2021 recall election involving California Governor Gavin Newsom, and later amended his complaint to also assert nominal damages. Plaintiff intended to vote “no” on the first question and wanted to vote for Governor Newsom as a successor candidate on the second question. He argued that, absent injunctive relief invalidating Article II, Section 15(c), California’s recall process would violate his Fourteenth Amendment due process and equal protection rights in two respects: by denying him an equally weighted vote, as required under the “one-person, one-vote” principle; and by denying him the right to vote for his candidate of choice on question two.
The Ninth Circuit affirmed the district court’s dismissal for failure to state a claim of an action brought pursuant to 42 U.S.C. Section 1983. The panel first held that this case was not moot even though the election was completed and a majority of voters had defeated the effort to remove Governor Newsom from office. Plaintiff adequately alleged a completed injury—namely, his inability to vote for Governor Newsom on question two during the recall election— that was fairly traceable to the California election procedures; and an award of nominal damages would redress that injury.
Further, the panel held that under controlling precedent, Section 15(c)’s prohibition does not constitute a severe restriction on the right to vote. California has an important interest in ensuring that the power to recall guaranteed to its voters is effective and does not invite an endless cycle of recall attempts.
Court Description: Civil Rights. The panel affirmed the district court’s dismissal for failure to state a claim of an action brought pursuant to 42 U.S.C. § 1983 asserting two federal constitutional challenges to California’s recall procedure of certain elected officials. A California recall ballot typically poses two questions. The first question asks whether the elected official should be removed from office, followed by the option to choose “yes” or “no.” If a majority of the voters chooses “yes,” the official in question shall be removed from office upon the qualification of his successor. The second question asks voters to choose a successor for the office, in the event the recall vote is successful, from a list of candidates who qualified for the ballot. Under Article II, § 15(c) of the California Constitution, the official subject to recall “may not be a candidate” to succeed himself or herself in the recall election. And if the recall vote is successful, the candidate receiving the most votes on question two will be the successor, even if that candidate wins only a plurality of the vote. Plaintiff A.W. Clark filed this lawsuit in August 2021 to halt the September 2021 recall election involving California Governor Gavin Newsom, and later amended his complaint to also assert nominal damages. Clark intended to vote “no” on the first question and wanted to vote for Governor Newsom as a successor candidate on the second question. He argued that, absent injunctive relief invalidating Article II, § 15(c), California’s recall process would violate his Fourteenth Amendment due process and equal protection rights in two respects: by denying him an equally weighted vote, as required under the “one-person, one-vote” principle; and by denying him the right to vote for his candidate of choice on question two. The panel first held that this case was not moot even though the election was completed and a majority of voters had defeated the effort to remove Governor Newsom from office. Clark adequately alleged a completed injury—namely, his inability to vote for Governor Newsom on question two during the recall election— that was fairly traceable to the California election procedures; and an award of nominal damages would redress that injury. The panel held that Clark’s two federal constitutional challenges to California’s recall procedure were without merit. As for the one-person, one-vote principle, no violation occurred because all voters enjoyed an equal right to vote on both questions, and all votes cast on each question were afforded equal weight. California’s recall procedure in effect permits two separate elections to be conducted simultaneously. The first election determines whether the incumbent will be removed from office; the second determines who the incumbent’s successor will be. Every vote is weighted equally in each election, and the right to equal representation is not violated simply because the two elections require different vote thresholds or because one election is decided by a plurality vote. Addressing Clark’s second constitutional challenge asserting a violation of his right to vote for the candidate of his choice, the panel held that under controlling precedent, § 15(c)’s prohibition does not constitute a severe restriction on the right to vote. Like the imposition of lifetime term limits upheld in Bates v. Jones, 131 F.3d 843 (9th Cir. 1997) (en banc), § 15(c) imposes a neutral restriction on voting that applies across the lines of political affiliation, race, religion, and gender. And like term limits, § 15(c) takes only one candidate option off the table for voters, leaving them with many other options. California has an important interest in ensuring that the power to recall guaranteed to its voters is effective and does not invite an endless cycle of recall attempts. That interest justifies § 15(c)’s relatively minor burden on the right to vote.
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