Recall of Congress

From Firethe219

Tuesday, March 23, 2010
The Legal Standards for Recall of Members of the United States Senate and House of Representatives

by Michael Farris, JD
Chancellor and Professor of Government
Patrick Henry College

Thesis:
Members of the United States Senate and House of Representatives are not exempt from state law processes allowing for recall of elected officials.

Statutory Analysis:
Article I § 4 of the United States Constitution gives state legislatures the control of the “times, places, and manners” for the election of members of the United States Senate and House of Representatives.

Eighteen states have provisions which allow the recall of at least some elected officials within that state. However, several of these states specify that only certain offices are subject to recall. Three states specifically provide for the recall of members of the United States House of Representatives or the U.S. Senate. Seven additional states provide for the recall of “all public officials.”

The New Jersey law in question is quite explicit:

Pursuant to Article I, paragraph 2b. of the New Jersey Constitution, the people of this State shall have the power to recall, after at least one year of service in the person's current term of office, any United States Senator or Representative elected from this State or any State or local elected official in the manner provided herein. (NJSA § 19:27A-2).

Oregon law is equally explicit. The definition in the recall act provides:
“Public office” means any national, state, county, city or district office or position, except a political party office, filled by the electors. (ORS § 249.002).

Similarly, the Wisconsin Constitution indicates the scope of the recall power with the following language:

The qualified electors of the state, of any congressional, judicial or legislative district or of any county may petition for the recall of any incumbent elective officer after the first year of the term for which the incumbent was elected, by filing a petition with the filing officer with whom the nomination petition to the office in the primary is filed, demanding the recall of the incumbent. (Wis. Con. Art. 13 § 12.)

There is little doubt that the power of the electors of the state to recall a U.S. Senator is implicit because of the explicit mention of congressional districts in this section.

The following states have “open” recall laws—that is the power of recall is not limited to certain enumerated offices.

Arizona (“Every public officer in the State of Arizona, holding an elective office, either by election or appointment, is subject to recall.”) (Ariz. Const. Art. 8 Part. 1 § 1).

Colorado (“Every elective public officer of the state of Colorado.”) (Colo. Const. Art. 21 § 1).

Kansas (“All elected public officials in the state, except judicial officers, are subject to recall”) (KSA § 25:4301).

Louisiana (“Any public officer, excepting judges of the courts of record, may be recalled”) (LSA § 18:1300.1).

Michigan (“Laws shall be enacted to provide for the recall of all elective officers except judges of courts of record.”) (Mich. Const. Art. 2 § 8.)

Nevada (“Every public officer in the State of Nevada is subject to recall from office.”) (NVS § 306.020).

North Dakota (“Any elected official of the state”) (N.D. Const. Art. 3 § 10).

California is a bit unclear. It may be that U.S. Senators from California are subject to recall but that members of the House are not. However, if the recall laws are liberally construed, as is normally the rule of each state, then the members of the House may also be included by implication. The relevant language is found in Article 2 of the California Constitution:

SEC. 13. Recall is the power of the electors to remove an elective officer.
SEC. 14. (a) Recall of a state officer is initiated by delivering
to the Secretary of State a petition alleging reason for recall.
Sufficiency of reason is not reviewable. Proponents have 160 days to file signed petitions.
(b) A petition to recall a statewide officer must be signed by
electors equal in number to 12 percent of the last vote for the
office, with signatures from each of 5 counties equal in number to 1percent of the last vote for the office in the county. Signatures to recall Senators, members of the Assembly, members of the Board of Equalization, and judges of courts of appeal and trial courts must equal in number 20 percent of the last vote for the office.
(c) The Secretary of State shall maintain a continuous count of the signatures certified to that office.

Arguably, U.S. Senators are “statewide officers” within the meaning of this state constitutional provision. Signature requirements are listed for statewide officers. No explicit comparable provision is available for the signature requirements for congressional districts.

It is clear that if New Jersey, Wisconsin, and Oregon can explicitly call for the recall the members of their respective federal delegations, every other state may do the same either by an act of the state legislature or by ballot initiative.

CASE LAW:
On March 16, 2010, the New Jersey Superior Court, Appellate Division, ruled that a recall petition against U.S. Senator Menendez could proceed. 2010 WL 908673. The Court reviewed the reasons for an against the constitutionality of the New Jersey law—all to conclude that the issue was fairly debatable. And since there was no showing that there were enough signatures on the recall petitions to merit an election, it was premature to rule on the constitutionality of the state law at this time. The court stayed its decision until the Supreme Court of New Jersey could rule.
The New Jersey Court said that no reported case had ever decided the merits of such a question. It noted that Hooper v. Hart, 56 F.R.D. 476 (W.D.Mich.1972), dismissed a federal declaratory relief action filed to determine whether a U.S. Senator was subject to recall under Michigan law for failing to present a live controversy. No recall petition had been filed; accordingly the result seems sensible.
Since members of the U.S. House and Senate are subject to other state laws regarding elections—and federal constitutional challenges to these requirements have generally been in vain—it stands to reason that state recall laws are equally binding on federal office holders from a state if such challenges are permitted by state law.

CONCLUSION:
The state of the law on this question is unsettled. The arguments in favor of the validity of the application of state recall laws are plain and evident. Moreover, all state laws are presumptively constitutional until ruled to the contrary.
There is no time like the present to test the validity of these laws. And there is only one way to do so—begin the process of recall of members of the House and Senate.
Posted by Fire the 219 at 12:17 AM