The plaintiffs who sought to stop the Sept. 14 recall vote that could see Gov. Gavin Newsom replaced by a Republican challenger have appealed a federal judge’s decision to deny their preliminary injunction, which allows the special election to proceed.
“Although Governor Newsom could receive more votes against his recall on issue one, a candidate who seeks to replace him and who receives fewer votes on issue two would be chosen to be governor,” wrote attorney Joseph Reichmann in his petition for writ of mandamus. “This process is violative of the Equal Protection and Due Process Clauses of the U.S. Constitution's Fourteenth Amendment. It flies in the face of and is violative of the federal legal principle of one person, one vote.”
But, according to the attorney representing Recall Gavin 2020 organizers Orrin Heatlie and Mike Netter, attorney Reichmann's argument is equally applicable to the 46 Republican challengers who have lined up to unseat Gov. Newsom.
“If this plaintiff had their way and Gavin Newsom could appear on question number one and question number two, that would arguably render the recall unconstitutional, because that would allow Gavin Newsom to get two votes when everybody else could only get one vote,” said Eric Early, an attorney and founder of Early Sullivan Wright Gizer & McRae law firm in Los Angeles. “Recall elections are not about simultaneously rehiring a Governor who has just been fired by a majority of Californians. Newsom is effectively 'fired' by his bosses – the People of California -- if there are more 'Yes' than 'No' votes on Question 1.”
The plaintiffs are requesting emergency relief from the Ninth Circuit Court of Appeals by Sept. 8, 2021.
“We are confident that the Plaintiff’s emergency appeal will be denied,” said Early who is campaigning for state attorney general in the 2022 election while also representing Heatlie, Netter, and the California Patriot Coalition in their bid to join the lawsuit as defendants. “It is nothing more than a rewrite of the meritless and wrong Constitutional arguments that were properly denied by federal District Judge Fitzgerald last week. The September 14th recall election will continue on schedule.”
As previously reported, the plaintiffs, Rex Julian Beaber and A.W. Clark sued California Secretary of State Shirley Weber on Aug. 14 but U.S. District Judge Michael Fitzgerald ruled on Aug. 27 that they failed to establish equitable factors that would justify a preliminary injunction or declaratory judgment.
“Newsom’s name is not on question number two nor should it be,” Early told the Southern California Record.
“If a majority of voters vote ‘yes’ on question number one, to recall Gavin Newsom, he has been fired by a majority of the voters of California and if you're fired, you don't get to be listed on the second question to try and get rehired because you have already been fired by a majority of the voters in California. That's the way this was designed and the existing recall rules are right out of the California Constitution.”