Don’t Return Your Ballot Yet! Convince Newson to Resign!

This match-up shakes up the race — and more likely defeats Elder!


(You’ll understand why I say this by the time you’re done reading. You should read the first half of this story, published a week ago, before this one (or if not, then after.) I’d promised Part 2 the next day, but it became a week. Been busy; had to cover pork products, for one thing. You don’t have to read that one first.)

  1. A Technical Discussion That You Can Also Skip

If you want, you can just take my word on the fact that the Recall vote continues even if Gov.Gavin Newsom resigns at this point,  with Lt. Gov. Eleni Kounalakis stepping into Newsom’s shoes as the person facing the recall. Or you can read on.

I thought that I had already mentioned my earth-shattering discovery that, under Elections Code 11302(a), Newsom’s resignation would not pull the rug out from under the recall, as I had believed (and illustrated) when I called for his resignation a month ago. (Lots of other people well versed in politics had apparently also not read that section of the code, based on their reactions of shock when I posted it on Facebook, and had shared my misapprehension.)

Here’s the entire code section:

(a) Except as described in paragraph (3) of subdivision (b), if a vacancy occurs in an office after a recall petition is filed against the vacating officer, the recall election shall nevertheless proceed.

(b)(1) Upon the occurrence of the vacancy, the elections official for each county in which a section of the recall petition has been filed shall immediately verify the signatures on the petition submitted to the elections official as of the date of the vacancy.

(2) If the elections official verifies that a sufficient number of signatures were filed as of the date of the vacancy, the recall election shall proceed.

(3) If the elections official verifies that an insufficient number of signatures, or no signatures, were filed as of the date of the vacancy, the recall election shall not proceed and a vacancy in the office that is the subject of the recall election shall be filled as otherwise provided by law.

(4) A person who was subject to a recall petition may not be appointed to fill the vacancy in the office that he or she vacated and that person may not be appointed to fill any other vacancy in office on the same governing board for the duration of the term of office of the seat that he or she vacated.

OK, Please Start Reading Again (If You Had Stopped)

Essentially, if a recall petition has been filed, if the governor resigns they tally all of the petitions filed up to that date — and unless there aren’t enough valid signatures on record, the recall continues. Even if Newsom had resigned much earlier, the recall would have continued, but with Kounalakis stepping into Newsom’s shoes to become the person recalled in the recall succeeds. This seems manifestly unjust — because it is — and I think that Democrats can make that work to our advantage.

I had noted in the previous story that is was possible that Kounalakis could file n action to enjoin the counting of the vote on the grounds that she has already been designated, by the California Constitution, as Newsom’s successor if the Governor’s office is vacated. I’ll quote that here too:

Article II. Section 15, of the California Constitution:

(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.

What does that “if appropriate” mean? Note that it has to mean something; in reading a constitution, we reject the notion that any of its language is “surplusage” (inert and unnecessary.) I argue in the previous piece, tollowing the lead of an article that I unfortunately cannot now find, that a popular vote on a replacement is only appropriate if someone has not already been designated to full that position. Looking at the description of Section 11302(b)(4) referring to the eligibility of someone to take another seat “on the same governing board” suggests that this section is intended to apply to elected or appointed to boards — legislators, council members, school board members —  which the Governor is not. I concluded that Eleni (as she calls herself in ads) does indeed have a legitimate case to bring, and that it was arguably not justiciable before it was “ripe” — after voting had begun, though probablt before it had ended.

Note the conflict here: Newsom would not want Eleni to bring a lawsuit declaring the Lt. Gov. his successor because then they’d have no reason to be afraid of Elder. He doesn’t actually give a damn about keeping the seat Democraitc; he cares only about defeating the recall so that he personally can remain in office.

Sorry, but from an actual Democratic perspective, this is pure villainy — he puts keeping himself as Governor over stopping Larry Elder??? — and Democratic establishment types who disagree are truly the equivalent of Republican Trump worshipers. Eleni — or anyone else with standing — should file the damned case — maybe after the first week of voting, as a compromise.

(I’ll note that former UCI Law Dean Erwin Chemerinsky and a colleague recently published a column saying that the replacement procedure violated the principle of one person, one vote — but I don’t like that case as much because it depends on federal law and thus on the Trumpy Supreme Court. The case proposed depends on nothing but California’s Constitution.)

2. So Should Newsom Still Resign?

If he wants to preserve his political viability for 2022 (and beyond), he sure should. He needs the recall to fail — and unfortunately it is not likely enough to faul while he remains Governor. The likely low (and disproportionately Republican) turnout, the French Laundry thing, the overweening selfish arrogance thing — they all portend poorly for him.  (This is part of, I think, why he wants everyone to send in their ballots right away without worrying whom to support in Part 2. If it looks like he has an avalanche of early support, and people think he’s winning, then the theory is that Democrats are more likely and Republicans less likely to vote. I’m not sure that this is true; it would seem likely to de-energize Dems and inflame Republicans.  What seems more likely is that it uses up most of his support in Week 1 — so that he shows a major drop-off in Democratic vote in weeks 2 and 3 compared to Republicans, at which point the scheme becomes apparent.

But one other thing seems likely: a huge early Democratic vote eases the pressure on him to resign. That’s unfortunate, because we should want to defeat the recall regardless of what happens to Newsom, in order the blunt it as a tool to overturn democratic elections for purely political reasons when the desired goal can’t be achieved in a high-turnout election.

AndEleni could defeat the recall when Newsom himself could not.

.Let’s say that Newsom resigns on Tuesday, August 31: two weeks from today, two weeks before the election. He says that he’s going to get out of the way because he doesn’t want to allow someone obnoxious like Larry Elder to win in a low-turnout election that he couldn’t possibly win in a high-turnout election. He gives these reasons why he’s resigning:

  1. The courts didn’t allow him to list himself as a Democrat in the Part 1 vote
  2. It’s a low turnout election, as noted above, which is fundamentally unfair in that the replacement race winner can take office with fewer votes he gets this time, let alone what he got in 2018 — and he wants to devote himself to repairing the recall system
  3. He made a series mistake on the French Laundry thing, for which he’s sorrier now than ever
  4. His sacrificing himself now, as atonement for his mistake, should satisfy people who wanted to drive him out for any arguably legitimate reason
  5. He wants to turn this election into a simple and clear choice for Californians: who should replace him for the next 15 months? Should it be Eleni — our first woman Governor, who is blameless — or Larry Elder, who wants to eliminate the minimum wage?

The lid would blow off of (at least our part of) the political world. Suddenly everyone would be aware of what’s happening, and most would have an opinion about it. Turnout, een among NPPs, would surge.

I would predict an outpouring of appreciation for Newsom’s “noble sacrifice” as a martyr to our screwed up system. I promise not to barf until the voting is over.

I would also predict an outpouring of sympathy for our first female Governor, who was, again, both innocent of wrongdoing and a lot better for most voters’ taste than Larry Elder. She retains her position Governor, as people ride to her rescue; Newsom is a hero for his jujitsu move (using their force against them) and maybe they fight it out in 2022 or maybe they don’t.

It makes a splendid story — with a happier ending that we’ll likely see otherwise.

And the fact that I really doubt that the arrogant bastard would do it, because he thinks that he deserves the seat on his own — is one reason why I still may just sit out Part 1. Seeing him set his whole political career on fire by losing the recall — when, obviously, he had options, including not getting us into this mess by blocking any viable Democrat from running to replace him, rendering the replacement election moot — has its own value as well. I’d like to see him retained by maybe 500 votes — enough for people to feel the wind from the bullet that we’ll have dodged.

3. So on Part 2: Faulconer? Kapelovitz? Abstaining?

I’m going to wait until the end (or just before) to fill in my ballot — and I think that other readers should too. The exit polls (from early voters) will be circulating around by them;  I want to be informed by them — as well as by polls on how various non-Democrats are doing. (If Elder is running away with it, for example, then why not cast a protest vote?)

In the replacement race, Part 2, I tend to disagree with Vern.  If Kevin Faulconer wins, I’ll be relieved in a way, because he’s not Larry Elder, but he’s still a Republican. I don’t dislike him on that basis, but I do hate validating the recall as a legitimate tool for moving the choice of Governor from general to special elections. If there are Republicans who are anti-recall (except for serious misconduct) on principle, I stand with them. But ones who just see this as a useful (or misuseful) political tool — I can’t stand with them. (I can’t even abide them.) So because a Faunconer win would still be seen by recall proponents as a success, I can’t support it. (But if Faulconer rises to neck-and-neck with Elder, then I guess it’s possible.)

I’m still inclined to support Kapelovitz — even though Democrats are jumping through hoops to ensure that neither he nor anyone like him can defeat Elder — because I think that the Democratic Party itself deserves a metaphorical black eye for going along with Newsom’s plans in the way they have. Normally, I don’t vote Green in a competitive race (unless one makes the top 2), but this is a race where Democrats took themselves out of the race — so it seems like a great time to Go Green. I’d love to see him outpoll every Democrat, even if he won’t out-poll every Republican.

And, of course, I think that abstention on Part 2 is desperate, stupid, and wrong.

I will definitely vote yes NO on Part 1 [thanks to a commenter for the correction — near or on Election Day — if I am voting to retain Blameless Eleni. If it’s Newsom, I don’t know.  I just don’t know.

And I know I’m not alone in that.

About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)