LOS ANGELES (KABC) -- Is the California recall election in jeopardy of being declared unconstitutional by a federal judge? A.W. Clark, the 20-year-old plaintiff in a lawsuit against the recall, hopes so.
Twenty-two million recall ballots have been mailed out and more than 1 million have already been returned.
"I believe we have a great case because this goes to the heart of democracy and whether voters have an equal choice in deciding who are their elected leaders," Clark said.
Clark is a supporter of Gov. Gavin Newsom who feels his interests aren't represented on the second question of the ballot because he can't vote for Newsom.
The first question on the ballot asks voters to choose "Yes" or "No" on if Newsom should be recalled, and the second question asks which of the 46 candidates should replace the incumbent. If more than 50% of voters choose "Yes" on the first question, the replacement candidate won't need a majority to be elected governor.
Although he's not involved in the lawsuit or the Newsom campaign, Erwin Chemerinsky, the dean of U.C. Berkeley's School of Law, wrote an op-ed earlier this month calling the recall unconstitutional.
"There is a real danger we could end up with a governor who is supported by a small percentage of the people and a far smaller number that want Gavin Newsom to stay in office," Chemerinsky said. "All of the opinion polls suggest that the question whether Gavin Newsom is recalled is going to be very close.
"Imagine he gets 49% of the vote and loses. And all of the opinion polls suggest that the candidate who will be chosen will get less than 20% of the vote."
On Tuesday, the defendant in the lawsuit, the Secretary of State's office, filed an opposition to the plaintiff's motion for declaratory relief and preliminary injunction and asked the court not to interfere with the ongoing election:
"Pursuant to section 15(c) of article II of the California Constitution, the Governor may not be listed as a candidate on the second issue to replace himself if the recall is approved... Every registered voter has an equal right to cast a single vote on either issue presented on the recall ballot, on both issues, or on neither issue. A voter need not cast a vote on one issue - nor vote in any particular way - to vote on the other. All votes cast in the recall election are given equal weight," read the opposition.
Those behind the recall applauded the secretary of state's response.
"The lawsuit filed by the plaintiff that is presently pending in court is bogus and we are confident that the court will dismiss the lawsuit," said Eric Early, the lead counsel for the group behind the recall effort.
Chemerinsky hopes the recall process is reformed following the election, including requiring a much higher signature threshold.
"I worry that those who lose at the polls are trying to get a second bite of the apple through recalls and that's not what recalls should be about," Chemerinsky said.
The next hearing for A.W. Clark's lawsuit is Aug. 30.
For the latest on the California recall election, visit: abc7.com/vote.