FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

A. W. CLARK, 

Plaintiff-Appellant, 

 v. 

SHIRLEY WEBER, as California Secretary 

of State, 

Defendant-Appellee.

No. 21-56337 

D.C. No. 

2:21-cv-06558-MWF-KS 

OPINION

Appeal from the United States District Court

for the Central District of California

Michael W. Fitzgerald, District Judge, Presiding

Argued and Submitted October 20, 2022

Pasadena, California

Before: Diarmuid F. O’Scannlain, Paul J. Watford, and Andrew D. Hurwitz, 

Circuit Judges.

Opinion by Judge Watford

FILED

NOV 29 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
SUMMARY*

Civil Rights

The panel affirmed the district court’s dismissal for failure to state a claim of an 

action brought pursuant to 42 U.S.C. § 1983 asserting two federal constitutional 

challenges to California’s recall procedure of certain elected officials.

A California recall ballot typically poses two questions. The first question asks 

whether the elected official should be removed from office, followed by the option 

to choose “yes” or “no.” If a majority of the voters chooses “yes,” the official in 

question shall be removed from office upon the qualification of his successor. The 

second question asks voters to choose a successor for the office, in the event the 

recall vote is successful, from a list of candidates who qualified for the 

ballot. Under Article II, § 15(c) of the California Constitution, the official subject 

to recall “may not be a candidate” to succeed himself or herself in the recall 

election. And if the recall vote is successful, the candidate receiving the most votes 

on question two will be the successor, even if that candidate wins only a plurality of 

the vote.

Plaintiff A.W. Clark filed this lawsuit in August 2021 to halt the September 2021 

recall election involving California Governor Gavin Newsom, and later amended his 

complaint to also assert nominal damages. Clark intended to vote “no” on the first 

question and wanted to vote for Governor Newsom as a successor candidate on the 

second question. He argued that, absent injunctive relief invalidating Article II, 

§ 15(c), California’s recall process would violate his Fourteenth Amendment due 

process and equal protection rights in two respects: by denying him an equally 

weighted vote, as required under the “one-person, one-vote” principle; and by 

denying him the right to vote for his candidate of choice on question two.

The panel first held that this case was not moot even though the election was 

completed and a majority of voters had defeated the effort to remove Governor 

Newsom from office. Clark adequately alleged a completed injury—namely, his 

inability to vote for Governor Newsom on question two during the recall election—

* This summary constitutes no part of the opinion of the court. It has been 

prepared by court staff for the convenience of the reader.
that was fairly traceable to the California election procedures; and an award of 

nominal damages would redress that injury.

The panel held that Clark’s two federal constitutional challenges to California’s 

recall procedure were without merit. As for the one-person, one-vote principle, no 

violation occurred because all voters enjoyed an equal right to vote on both 

questions, and all votes cast on each question were afforded equal 

weight. California’s recall procedure in effect permits two separate elections to be 

conducted simultaneously. The first election determines whether the incumbent will 

be removed from office; the second determines who the incumbent’s successor will 

be. Every vote is weighted equally in each election, and the right to equal 

representation is not violated simply because the two elections require different vote 

thresholds or because one election is decided by a plurality vote.

Addressing Clark’s second constitutional challenge asserting a violation of his 

right to vote for the candidate of his choice, the panel held that under controlling 

precedent, § 15(c)’s prohibition does not constitute a severe restriction on the right 

to vote. Like the imposition of lifetime term limits upheld in Bates v. Jones, 131 

F.3d 843 (9th Cir. 1997) (en banc), § 15(c) imposes a neutral restriction on voting 

that applies across the lines of political affiliation, race, religion, and gender. And 

like term limits, § 15(c) takes only one candidate option off the table for voters, 

leaving them with many other options. California has an important interest in 

ensuring that the power to recall guaranteed to its voters is effective and does not 

invite an endless cycle of recall attempts. That interest justifies § 15(c)’s relatively 

minor burden on the right to vote.

COUNSEL

Joseph Reichmann (argued), Yagman & Reichmann LLC, Venice Beach, California, 

for Plaintiff-Appellant.

John D. Echeverria (argued), Deputy Attorney General; P. Patty Li, Supervising 

Deputy Attorney General; Thomas S. Patterson, Senior Assistant Attorney General; 

Rob Bonta, Attorney General; Office of the California Attorney General, San 

Francisco, California; for Defendant-Appellee.
Page 2 of 8

WATFORD, Circuit Judge:

Article II of the California Constitution empowers voters to recall certain

elected officials. A recall ballot typically poses two questions. The first question 

asks whether the official should be removed from office, followed by the option to 

choose “yes” or “no.” Cal. Elec. Code § 11320(a). If a majority of the voters 

chooses “yes,” the official in question “shall be removed from office upon the 

qualification of his successor.” § 11384. The second question asks voters to 

choose a successor for the office, in the event the recall vote is successful, from a 

list of candidates who qualified for the ballot. §§ 11322, 11381. Under Article II,

§ 15(c) of the California Constitution—the key provision at issue here—the official 

subject to recall “may not be a candidate” to succeed himself or herself in the recall 

election. Cal. Const. art. II, § 15(c); see also Cal. Elec. Code § 11381(c). And if 

the recall vote is successful, the candidate receiving the most votes on question two 

will be the successor, even if that candidate wins only a plurality of the vote. Cal. 

Const. art. II, § 15(c); see also Cal. Elec. Code § 11385.

In August 2021, plaintiff A.W. Clark filed this lawsuit under 42 U.S.C. 

§ 1983 to halt the September 2021 recall election involving California Governor 

Gavin Newsom. Clark intended to vote “no” on the first question of the recall 

ballot and wanted to vote for Governor Newsom as a successor candidate on the 

second question. He argued that, absent injunctive relief invalidating Article II, 
Page 3 of 8

§ 15(c), California’s recall process would violate his Fourteenth Amendment due 

process and equal protection rights in two respects: by denying him an equally 

weighted vote, as required under the “one-person, one-vote” principle; and by 

denying him the right to vote for his candidate of choice on question two.

The district court denied Clark’s motion for a preliminary injunction on the 

ground (among others) that he had not demonstrated a likelihood of success on his 

claims. Clark immediately appealed that ruling, but this court denied his 

emergency request for injunctive relief pending resolution of the appeal. The

recall election proceeded as scheduled on September 14, 2021, and a majority of 

the voters answered “no” on question one, thereby defeating the effort to remove 

Governor Newsom from office.

Completion of the recall election could have mooted this action, as Clark’s 

original complaint sought only prospective relief with respect to the September 

2021 gubernatorial recall election. But Clark amended his complaint to add a 

request for nominal damages, which we presume he asserts against defendant 

Shirley Weber, California’s Secretary of State, in her individual capacity. See 

Shoshone-Bannock Tribes v. Fish & Game Commission, 42 F.3d 1278, 1284 (9th 

Cir. 1994). Clark has adequately alleged a completed injury—namely, his inability 

to vote for Governor Newsom on question two during the recall election—that is 

fairly traceable to the California election procedures he challenges. Because an 
Page 4 of 8

award of nominal damages would redress that injury, this case is not moot. See 

Uzuegbunam v. Preczewski, 141 S. Ct. 792, 801–02 (2021).

Following the recall election, Weber moved to dismiss Clark’s claims under 

Federal Rule of Civil Procedure 12(b)(6). The district court granted the motion, 

relying on the same reasoning it had provided earlier when denying Clark’s motion 

for a preliminary injunction. Clark has again appealed, this time from the final 

judgment dismissing his action without leave to amend.

Clark’s two federal constitutional challenges to California’s recall procedure

are without merit. He first contends that the recall procedure violates the 

Fourteenth Amendment’s one-person, one-vote principle. See Evenwel v. Abbott, 

578 U.S. 54, 59 (2016). In Clark’s view, voters who support the incumbent get to 

cast only one vote (they can vote “no” in response to the first question), whereas 

voters who favor the incumbent’s removal get to cast two votes (they can vote 

“yes” on question one and then choose their preferred successor on question two). 

Clark’s argument might have merit if voters who answered “no” in response to 

question one were barred from voting for a successor candidate on question two. 

But that is not the case. All voters have an equal right to answer “yes” or “no” in 

response to question one, and regardless of how they vote on that question, they 

may then choose to vote for a successor on question two from the list of candidates 

who qualified for the ballot. It is true that voters like Clark who wanted Governor 
Page 5 of 8

Newsom to remain in office were not able to vote for him as a successor candidate 

on question two. The inability to do so, however, relates to the right to vote for a 

candidate of one’s choice (an issue we address below). As for the one-person, onevote principle, no violation occurred because all voters enjoyed an equal right to 

vote on both questions, and all votes cast on each question were afforded equal 

weight.

Clark alternatively contends that California’s recall procedure violates the 

one-person, one-vote principle because an incumbent must receive a majority vote 

in his or her favor on question one to remain in office, whereas a successor may be 

elected with a mere plurality of the vote on question two. Although Clark frames 

this as a “dilution” of the votes cast by those who answered “no” on question one, 

his framing is mistaken. California’s recall procedure in effect permits two 

separate elections to be conducted simultaneously. The first election determines 

whether the incumbent will be removed from office; the second determines who 

the incumbent’s successor will be. Every vote is weighted equally in each election, 

and the right to equal representation is not violated simply because the two 

elections require different vote thresholds or because one election is decided by a 

plurality vote. See Rodriguez v. Newsom, 974 F.3d 998, 1004–05 (9th Cir. 2020) 

(rejecting a federal constitutional challenge to California’s use of a plurality vote to 

select the slate of electors for President).
Page 6 of 8

Clark’s second constitutional challenge asserts a violation of his right to vote 

for the candidate of his choice, predicated on the fact that Article II, § 15(c) 

prohibited Governor Newsom from appearing as a successor candidate on question 

two of the recall ballot. Clark contends that this prohibition constitutes a severe 

restriction on his right to vote for which California lacks a sufficiently compelling 

justification. See Burdick v. Takushi, 504 U.S. 428, 434 (1992). We find no merit 

in this argument either.

Under controlling precedent, § 15(c)’s prohibition does not constitute a 

severe restriction on the right to vote. Most on point is our decision in Bates v. 

Jones, 131 F.3d 843 (9th Cir. 1997) (en banc), which upheld California’s 

imposition of lifetime term limits on state officials. The plaintiffs in that case 

argued, as Clark does here, that the law unconstitutionally impinged on their right 

to vote for the candidate of their choice. Id. at 847. We rejected that argument, 

holding that term limits did not amount to a severe restriction on the right to vote 

because they were “a neutral candidacy qualification, such as age or residence” and

made “no distinction on the basis of the content of protected expression, party 

affiliation, or inherently arbitrary factors such as race, religion, or gender.” Id.

The restriction challenged here imposes no greater burden on the right to 

vote than the term limits at issue in Bates. Like term limits, § 15(c) imposes a 

neutral restriction on voting that applies across the lines of political affiliation, 
Page 7 of 8

race, religion, and gender. And like term limits, § 15(c) takes only one candidate 

option off the table for voters, leaving them with many other options. In fact, 

§ 15(c) is arguably less burdensome than term limits because it bars an incumbent 

from running in just one election while term limits sideline a candidate for good. 

Together, § 15(c)’s neutrality and relatively minor impact on voters’ ability to 

make themselves heard render it a non-severe burden on voting.

Because § 15(c) imposes only a non-severe burden on the right to vote, it is 

constitutionally valid so long as California establishes that it serves an important 

government interest. See Burdick, 504 U.S. at 434. California has met its burden 

by asserting an interest in maintaining the efficacy of its recall procedure. As the 

district court concluded, “Section 15(c) meets the Burdick test by preventing the 

anomalous result that an officer recalled by a majority would be immediately 

returned to office by a slim plurality.” In other words, California has an important 

interest in ensuring that the power to recall guaranteed to its voters is effective and 

does not invite an endless cycle of recall attempts. That interest justifies § 15(c)’s 

relatively minor burden on the right to vote.

Finally, like the district court, we decline to address a separate argument that 

Clark advances under state law. He contends that § 15(c) conflicts with 

California’s later-enacted Top Two Candidates Open Primary Act (Proposition 

14), which amended Article II, § 5 of the California Constitution to provide for 
Page 8 of 8

general elections in which only two candidates for congressional and statewide 

offices appear on the ballot, thereby ensuring that the winner will be elected by 

majority vote. Clark construes Proposition 14 as having invalidated the provision 

of § 15(c) that authorizes the successor candidate in a recall election to be elected 

by a plurality vote.

The district court did not reach this argument because it properly viewed 

Clark’s contention as one arising under state law rather than presenting an issue of 

federal constitutional law cognizable under 42 U.S.C. § 1983. Clark did not 

clearly link his arguments concerning Proposition 14 to any alleged violation of the 

federal Constitution in either his complaint or the briefing below. We therefore 

take the district court as having declined to exercise supplemental jurisdiction over 

what it viewed as a separate state law claim and having dismissed the claim 

without prejudice. We find no abuse of discretion in the court’s refusal to exercise 

supplemental jurisdiction after it dismissed all of Clark’s federal claims with 

prejudice. See Lima v. United States Department of Education, 947 F.3d 1122, 

1128 (9th Cir. 2020).

AFFIRMED.