The dean of UC Berkeley School of Law says he's concerned about the constitutionality of the impending gubernatorial recall election.
"The California Constitution prescribes the election procedure, but I have constitutional concerns as Aaron and I expressed in the op-ed," Dean Erwin Chemerinsky told the Northern California Record.
Chemerinsky and his colleague Aaron S. Edlin wrote an editorial in The New York Times on the subject.
Their reasoning is that the candidate who "gets the most votes" is elected and that every voter gets an equal say, therefore the California voting system for recalls violates that standard, according to the editorial.
"Imagine that 10 million people vote in the recall election and 5,000,001 vote to remove Mr. Newsom, while 4,999,999 vote to keep him in office. He will then be removed and the new governor will be whichever candidate gets the most votes on the second question," they write in the op-ed.
They argue that if Gov. Gavin Newsom is favored by a "plurality" of the voters, but someone else is elected, then Newsom's voters are denied equal protection and that violates the U.S. Constitution.
"This should not be a close constitutional question. It is true that federal courts generally are reluctant to get involved in elections. But the Supreme Court has been emphatic that it is the role of the judiciary to protect the democratic process and the principle of one-person one-vote," the law scholars write in the op-ed.
They said in the op-ed that this issue was not raised in 2003 before the last recall, when Gray Davis was removed from office after receiving support from 44.6% of the voters, but his successor, Arnold Schwarzenegger, was elected to replace him with 48.5% of the vote.
"This time, we hope that a state or federal lawsuit will be brought challenging the recall election," they write in the op-ed. "The court could declare the recall election procedure unconstitutional and leave it to California to devise a constitutional alternative. Or it could simply add Mr. Newsom’s name on the ballot to the list of those running to replace him. That simple change would treat his supporters equally to others and ensure that if he gets more votes than any other candidate, he will stay in office."