Recall election

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A recall election is an election called in the middle of an elected official's term of office when a sufficient proportion of the electorate deems it intolerable or inappropriate to allow that official to complete his term. Its use is rare, and usually confined to local offices such as school boards and city councils.

Eighteen states, mostly in the western United States, provide, in their laws, for the mid-term recall of U.S. Senators and other elected officials:[1] Seven of these states require specific grounds for a recall: Alaska, Arizona, California, Colorado, Georgia, Idaho, Kansas, Louisiana, Michigan, Minnesota, Montana, Nevada, New Jersey, North Dakota, Oregon, Rhode Island, Washington and Wisconsin. Of these, the following states have constitutional provisions authorizing the recall of congressmen: Colorado, Louisiana, Michigan, New Jersey, North Dakota, Oregon, Washington and Wisconsin; Montana has a statutory recall provision.[2]

Federal law does not provide for the popular recall of a President of the United States, but the various State-level recall laws often provide for the recall, not only of State officials but also of their Senators and Representatives in Congress. (To date no Senator or Representative has been recalled mid-term from his office. A New Jersey case has produced an opinion that no State may recall its Senator.[3] That case will likely head to the United States Supreme Court for a definitive determination.)

Republican Arnold Schwarzenegger replaced California's governor Gray Davis, a Democrat, at a recall election in 2003.

Contents

History

In the early 20th century, the Progressive Movement, especially in western states, sought more direct democracy by promoting the recall, along with the initiative (the people petition to put a new law on the ballot), referendum (people vote on major laws proposed by the lefislature), direct election of senators (election was by the state legislature), and woman suffrage. When the territory of Arizona in 1911 submitted its new constitution to Washington in order to become a state, conservative President William Howard Taft insisted on removing the recall provision because it would allow recall of state judges. The recall was removed, Taft signed the statehood bill on February 14, 1912, and state residents promptly put the provision back in.[4]

California

A recall has been part of the California Constitution since 1911.[5]

In September 1938, Los Angeles Mayor Frank L. Shaw was removed from office in a recall election after serving 14 years. This results was the major victory of a multi-interest urban reform movement that successfully portrayed Shaw as the despot of a corrupt political machine financed by big business and underworld interests. With the aid of a police scandal and the wealth of one recall leader, the reform candidate won a landslide victory. After the election, the reform coalition disintegrated when the various single-issue groups found that they were not the dominant influence in the new city administration.[6]

Governor Gray Davis was the first California governor to be recalled by voters, in 2003, and only the second governor in United States history to be removed by the voters from office.

Oklahoma

Recall has the same effect as impeachment. Disgruntled Oklahoma farmers and laborers handed left-wing radical Jack Walton an easy election victory in 1922 as governor. One scandal followed another—Walton's questionable administrative practices included payroll padding, jailhouse pardons, removal of college administrators, and an enormous increase in the governor's salary. The conservative elements successfully petitioned for a special legislative recall session. To regain the initiative, Walton retaliated by attacking Oklahoma's Ku Klux Klan with a ban on parades, declaration of martial law, and employment of outsiders to 'keep the peace.' He tried to call out the National Guard to block the legislature from holding the special session. That failed, and legislators charged Walton with corruption, impeached him, and removed him from office in 1923.[7]

Illinois

In October 2010, reactions to the corruption of the previous governor resulted in a proposed recall law:

  • The proposed law would require that at least 20 state representatives and 10 state senators divided equally between both political parties sign a notice of intent to recall the governor before a petition could be circulated. Then, 60 percent of the electorate would have to approve the recall. [8]

New Jersey

The Uniform Recall Election Law, which also implements explicit provisions in the New Jersey State Constitution (Article I, Section 2, Paragraph b), provides that any elected official in the State, and any Senator or Representative elected from New Jersey, may face a recall election after serving for one year since his last election. Any three citizens may form a recall committee, named according to this formula: "Committee to Recall John Doe from the Office of ____." The Committee files a Notice of Intent with the appropriate election official. That Notice must state the name of the official and the title of the office that he is to be recalled from. If the committee wants to call a special election, they must estimate the cost of holding such a special election (so that petition signers will know how much this exercise will likely cost the State); otherwise, the recall election will be held coincidentally with the next general election. The election official must then within three days either approve it as to form and content or else return it, with his objections, to the committee for correction.

Once such a notice is approved, the Committee has 160 days (or 320 days in the case of an attempt to recall the Governor or either Senator) to gather signatures from 25 percent of the voters registered as of the immediate previous general election. If the committee gathers the required number of signatures within the required time frame, the recall election takes place at the next opportunity, or on a specified date if a special election is desired.

Two separate questions are put to the voters in that event:

  1. Shall the official be recalled from his office? If a majority of voters vote "No," the official is retained. Otherwise, the voters next get to vote on the next question:
  2. Who shall serve out the unexpired term in place of the recalled official? Any person, including the recalled official himself, may stand for election to that unexpired term. The winner, no matter who it is, serves out the term until expiration.

The Menendez Recall Case

On September 25, 2009, activist RoseAnn Salanitri made history as the first citizen to form a committee to recall a member of the United States Senate. She and two other signatories filed a Notice of Intent, as per the Uniform Recall Elections Law and the relevant provision in the New Jersey Constitution, to recall Robert Menendez from his office.

Instead of responding within the three-day statutory time frame, the New Jersey Division of Elections sent a brief acknowledgement-of-receipt that the committee received on October 5. That was the last communication that the Committee to Recall Robert Menendez from the Office of United States Senator would receive for more than three months. During that time:

  1. On November 3, 2009, former United States Attorney Chris Christie was elected Governor of New Jersey, defeating incumbent Governor Jon S. Corzine. This would eventually necessitate a change of administration, and had the immediate effect of making the then-incumbent Secretary of State, Nina Mitchell Wells, a lame duck.
  2. On November 10, 2009, the Committee sent a second Notice of Intent, which the Division of Elections never answererd.
  3. On December 15, 2009, the Committee filed a legal action (Committee to Recall Robert Menendez from the Office of United States Senator v. Nina Mitchell Wells, Secretary of State, and Robert F. Giles, Director of the Division of Elections) to compel the Division of Elections either to release the Notice of Intention or to state their administrative objections to it.
  4. On January 10, 2010, the Committee followed up with a motion for summary judgment.

Finally, on January 11, 2010, the Division of Elections delivered its "final determination": the Notice of Intention would be rejected, because the United States Constitution did not permit a State to recall either of its Senators. The lame-duck Secretary of State made that determination on the advice of the equally lame-duck Attorney General The Committee appealed at once to the New Jersey Superior Court's Appellate Division. Before written briefs were due in to the Appellate Division, Governor Christie took office and replaced Wells with Lieutenant Governor and current (as of 2010) Secretary of State Kim Guadagno, and also replaced the Attorney General. However, neither officer did anything differently with the Notice of Intention, pending a decision of the Appellate Division.

On March 15, 2010, that Division held, per curiam (i.e., unanimously), that a US Constitutional issue was not even ripe for determination, nor would it become so unless and until Salanitri's committee gathered 1.3 million signatures (equal to approximately 25 percent of the voters registered as of the preceding election). They further determined that the United States Supreme Court had not had "a case on point." They ordered then-Secretary of State Guadagno and Director Giles (whom Christie had allowed to stay on in his job) to approve the Notice of Intention. But they stayed their order pending a possible State supreme court appeal.

On April 4, 2010, Senator Menendez filed for certification to the New Jersey Supreme Court. The Court accepted the petition and asked for briefing on an accelerated schedule. Briefing was completed at the end of April, and oral argument was scheduled for May 25, 2010. Then on May 3, 2010, another event took place that affected the very composition of the court: Governor Christie refused to grant to Justice John E. Wallace his reappointment to a tenured position on the Court. Senator Stephen M. Sweeney (D-3-Gloucester County), President of the New Jersey Senate, reacted in outrage at this alleged break with "tradition," since no Governor had yet denied tenure to a sitting Justice of the Supreme Court. (In New Jersey, judges and Justices must serve initial seven-year terms and then serve during good behavior if reappointed.) Sweeney refused to schedule a confirmation hearing on Christie's suggested replacement, with the result that the recall case went to oral argument before six Justices and an empty chair.

During the summer following the oral argument, speculation was rife that the Court was deadlocked. It wasn't. The Court held, 4-2, that States were not allowed to recall their Senators. In so holding, the Supreme Court relied on a number of precedents relating, not to recall (for such precedents do not exist), but to term limits, which the US Supreme Court has considered an unconstitutional attempt to add another qualification for office. They also relied a number of statements from those participating in the Constitutional Convention of 1787, and the following ratification debates, to say that the Framers of the Constitution did not write the power of recall into the Constitution because they explicitly intended to refuse such a power.

In a ringing dissent, Justices Roberto Rivera-Soto and Helen E. Hoens pointed out that the power of recall was an inherent power of the people (and reserved to the people by the Ninth and Tenth Amendments to the US Constitution), that it predated the Constitution and even English settlement of North America, that their colleagues had misapplied the relevant federal precedents, and that their colleagues had, finally, discarded years of New Jersey Supreme Court precedent aimed at protecting the rights of the people, including the franchise.

Today is indeed a sad and dark day in the history of this Court. We cannot, and we will not, join in the unconstitutional disenfranchisement of New Jersey’s citizens. We, therefore, dissent.

At the time of posting, Andrew Schlafly, lead counsel to the recall committee, is planning to file his own writ of certiorari to the United States Supreme Court.

Senator Menendez will in any event next face re-election in 2012, since he belongs to Senate Class I. If he is defeated in that election, the case will then become moot.

Further reading

  • Allswang, John. California Initiatives and Referendums, 1912-1990: A Survey and Guide to Research (1991)
  • Baldassare, Mark and Katz, Cheryl. The Coming Age of Direct Democracy: California's Recall and Beyond (2007). 256 pp.
  • Recall rules in California

References

  1. "Entry for Recall Election," National Conference of State Legislatures, accessed 14 January 2010.
  2. http://www.recallcongressnow.org/states.php
  3. Hurlbut T, "NJ Supremes declare recall unconstitutional," Essex County Conservative Examiner, <http://www.examiner.com/Newark>, 18 November 2010
  4. Cindy Hayostek, "Douglas Delegates to the 1910 Constitutional Convention and Arizona's Progressive Heritage," Journal of Arizona History 2006 47(4): 347-366
  5. http://www.leginfo.ca.gov/.const/.article_2
  6. Thomas Joseph Sitton, Urban Politics and Reform in New Deal Los Angeles: the Recall of Mayor Frank L. Shaw, Ph.d. Dissertation , University of California, Riverside, in Proquest Dissertations & Theses: A&I
  7. Brad L. Duren, "'Klanspiracy' or Despotism? The Rise and Fall of Governor Jack Walton, Featuring W. D. McBee," Chronicles of Oklahoma 2002-03 80(4): 468-485,
  8. Knight R, "ACLU Calls Illinois Recall Proposal—What Else?—Unconstitutional," The Daily Caller, 25 October 2010. Retrieved 18 November 2010.

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