Newsom Won’t Have Party Affiliation on Recall Ballot
Photo by Matt Gush via Shutterstock
California Governor Gavin Newsom won’t have “Democrat” next to his name on the recall election ballot after losing a legal battle over a filing error from early 2020.
On January 18, Gov. Newsom formally appointed former Secretary of State, Alex Padilla, to the senate in order to fill the vacancy left by Vice President Kamala Harris and simultaneously nominated Dr. Shirley Weber (D) to fill the role of Secretary of State. Eleven days later, Dr. Shirley Weber was confirmed and sworn in.
“It is my responsibility as Secretary of State to ensure that more Californians are able to exercise [their] power through the electoral process, and that our elections remain secure, accessible and fair even under the most adverse conditions,” said Secretary of State Dr. Weber.
A law approved by Newsom in 2019, namely SB 151, was designed in order to authorize a public officer who is subject to recall to have their party preference be identified on the ballot. The stated purpose is to provide the voters more information so that they are able to make a more informed choice when deciding to retain or remove an individual from office.
According to the bill, the person holding office will inform the Secretary of State whether the officeholder would like a party preference indicated. If the officeholder doesn’t indicate a party preference, then the ballot will read “Party Preference: None.”
SB 151 received unanimous approval from the Senate (38-0) and Assembly (77).
However, a section of the California Elections Code states that the officer will have just seven days from the date that the recall is filed to indicate their party preference to the Secretary of State. For Newsom – that was 17 months ago.
“Due to an inadvertent but good faith mistake on the part of his elections attorney,” the lawsuit reads, “Newsom timely filed his answer but did not include his party-preference election.”
Newsom filed a notice of party preference election with Weber on June 19, but she declined to accept the notice, prompting Newsom to take legal action.
The lawsuit argued that “replacement candidates have until 59 days before the recall election to file their party-preference election,” and that the seven-day deadline set for Newsom “serves no purpose related to the efficient administration of running the election.”
Newsom’s lawyers argued that instead, the deadline was meant to be for the ease of the officeholder, so that they can fill out their party-preference at the same time they filed for the intent to circulate the recall petition. Unlike the nominees for replacement, the sitting officer being recalled doesn’t have to file any nomination documents, and the only time they would file any election-related documents would be when they file the answer.
The lawsuit argued that given that the replacement candidates have 59 days before the election to file their notice of party preference, “enforcing the deadline against Newsom would be fundamentally unfair and raise First Amendment and equal protection concerns.”
When the lawsuit was drafted, there were still several steps that needed to be taken before the recall election could take place. The Secretary of State hadn’t certified as sufficient the recall election, the Lieutenant Governor hadn’t called the election, the nomination period for replacement hadn’t begun and the format/content of the recall ballot was still “at minimum” weeks away from being drafted, according to the legal document.
The final argument in the lawsuit focused on getting the necessary information to the voters like the bill intended in the first place.
“The voters would be deprived of the very information the Legislature has deemed important for them to receive, all because the Governor’s counsel inadvertently failed to file a form…at least sixteen months before the recall election has been called and long before it became clear that the recall would even qualify for the ballot,” the lawsuit stated.
On July 1, a severe time crunch was placed on the suit. According to the Lieutenant Governor, the recall election date was set for September 16, which left just 18 days before the 59-day deadline that Newsom’s lawyers fought for.
Unfortunately for Newsom, just eight days later, Sacramento County Judge James P. Arguelles denied the petition for writ of mandate, and dismissed the complaint for declaratory and injunctive relief.
It was good news, however, for the Recall Gavin group – California Patriot Coalition. In a press release from July 12, Eric Early stated they brought an Emergency Motion to Intervene in Newsom’s suit last week.
Early is the Lead Counsel for the California Patriot Coalition and California Attorney General candidate. He addressed the lawsuit’s conclusion saying “the judge followed the law and that is all we can ask for.”
Arguelles explained that the law is unambiguous and explicitly states that if the deadline is not met, the ballot “shall not” have the party preference indicated, and “in other words, Secretary Weber had no ministerial duty to accept the untimely designation, and writ relief appears at the outset to be unavailable.”
The judge also said that although Newsom argued that denying his preference would undermine the intentions of SB 151, “it is clear from both the text and the legislative history that SB 151 does not consider information about an elected officer’s party affiliation so vital to voters that it must be included on the ballot.”
SB 151 mandates that replacement candidates must include their party affiliation or select “Party Preference: None.” The same is not true for the current officeholder, who has the option to retain discretion and have no party reference made next to their name at all.
According to the judge, this means that “the objective of SB 151 is better described as one to provide elected officers with discretion to inform recall voters about their party preferences, as opposed to imposing a requirement that voters be so informed.”
“Governor Newsom does not advance any constitutional claims in his petition and complaint,” Arguelles said in closing, and “for all the foregoing reasons, the petition is denied.”