A federal judge denied a motion for declaratory relief and preliminary injunction against the state’s chief election officer filed by two plaintiffs who seek to stop the Sept. 14 recall vote that could see Gov. Gavin Newsom replaced by a Republican challenger.
Rex Julian Beaber and A.W. Clark sued Secretary of State Shirley Weber in the Central District of California alleging in their Aug. 14 complaint that the recall vote is unconstitutional because they would only vote once while voters in favor of recalling Gov. Newsom would get to vote twice.
Weber was nominated to serve as California Secretary of State by Governor Gavin Newsom on Dec. 22, 2020, and sworn into office on January 29, 2021.
“Plaintiffs have failed to stop the recall election,” said Eric Early, an attorney and founder of Early Sullivan Wright Gizer & McRae law firm in Los Angeles. “The election will continue as scheduled on September 14. This is a victory for all Californians and upholds the rule of law as set forth in California’s Constitution.”
U.S. District Judge Michael Fitzgerald ruled on Aug. 27 that the plaintiffs failed to establish equitable factors that would justify a preliminary injunction or declaratory judgment.
“Plaintiff’s federal constitutional rights simply are not violated; therefore, there is no chance that Plaintiff could prevail on the merits,” Judge Fitzgerald wrote. “Plaintiff has established no equitable factor favoring a preliminary injunction. In particular, the delay in filing this lawsuit means that Plaintiff seeks to halt an election that, in fact, has already begun, which is a strong indicator that equitable factors are not present here.”
Fitzgerald gave the two plaintiffs a second chance by ordering them to show cause in writing by Sept. 21 as to why a summary judgment should not be entered in favor of Weber.
“The Plaintiff can try to make an emergency appeal to the Ninth Circuit for a ruling before September 14 but we are confident that such an appeal will also be denied,” said Early who filed an intervenor application asking to join the lawsuit as a defendant on behalf of Recall Gavin 2020 organizers.
Early is campaigning for Attorney General in the 2022 election while also representing Recall Gavin 2020 organizers Orrin Heatlie, Mike Netter, and the California Patriot Coalition.
“The entire recall structure was created in 1911 as part of California's constitution,” Early told the Southern California Record. “There have been other attempts to find the recall unconstitutional along the way and they've all lost. The existing recall rules are right out of the California constitution.”