The Recall, Second Edition

Tribunal of the People

Joseph F. Zimmerman

• Publisher: SUNY Press
• Year: 2013
• ISBN:
  9781438449272
• Topic: Politics & International Relations
• Subtopic: American Government
• Index: Politics & International Relations

The recall, or "election in reverse, " is meant to allow voters to remove an elected official from office prior to the completion of his/her term in office. In this revised second edition of The Recall, Joseph F. Zimmerman examines the rise of the recall in the United States and its use by American voters. Proponents of the recall believe the threat of removal from office would ensure that elected officials would act in accord with the public's will, while opponents fear their use would disrupt and inhibit public officers in the performance of their duties. Zimmerman provides a detailed analysis of how the recall has functioned in practice and discovers that the recall has seldom been employed against elected state officials. Although used more often against local government officials, the rate is still not exceptionally high when one considers the extremely large number of elected officials. After a century of use in the United States, the recall has not produced a new era of public official responsibility as hoped for by proponents, but neither has it caused extensive disruption of state and local governments, the original concern of early opponents.

Chapter 1

The Sovereign Citizen

The recall is a process for removing a public officer from an elective office before expiration of his or her stipulated term of office. The process begins when removal proponents file petitions containing the required number of valid signatures with the designated officer responsible for conducting a special election to determine whether the officer should be removed from office for specified reasons. A recall election, also known as a recall referendum, is based on the “gun behind the door” theory positing elected office holders must be kept continuously responsible to the voters. Such an election may be limited to the question of removing the targeted officer or also may involve the selection of a replacement in the event the officer is removed.

A constitutional or a statutory provision in twenty-six states authorizes the recall. Additionally, the state legislature in several states, for example, Connecticut, has enacted special acts authorizing specific local governments to use the recall. “Home rule” constitutional provisions in several other states, such as Massachusetts, allow general purpose local governments to draft and adopt charters authorizing the electorate to employ the recall, and other local governments in these states have employed home rule powers and amended their existing charters to provide for the recall.¹ The New York State Constitution since 1923 contains home rule provisions, but in 1989 the state comptroller opined, “since neither article 9 of the State Constitution nor Municipal Home Rule Law, §10 expressly provide home rule authority to provide for recall election, a city may not adopt a local law authorizing recall elections.”²

The 2012 Census of Governments revealed there were 89,004 local governments: 38,917 general purpose local governments, and 50,087 special purpose governments in the United States.³ The number of public officers subject to the recall in the United States is unknown, but the total is large because there were 18,828 elected state government officers and 483,830 elected local government officers according to the 1992 Census of Governments (the latest available data), a total larger than the number of elected officers in any other nation.⁴

The electorate employing the recall in effect act de facto as a petit jury trying a public officer on charges contained on petitions initiated by a recall group that served as a grand jury. In contrast to criminal charges filed against a person, the regular grand jury process is bypassed, although the officer subject to a recall petition and recall election also may be subject to criminal prosecution if a legal wrong has been committed. The officer, of course, can seek judicial review of alleged procedural errors in the petition process and alleged invalid signatures on petitions.

Proposals for authorizing voters to employ recall elections to keep public officers continuously responsible to the electorate generated major controversies in states and municipalities since the recall first was proposed in Los Angeles in 1901. The recall proposal immediately raised the question of whether the fundamental nature of representative government would be transformed if the recall was authorized and used by voters on a regular basis.

The proposition that citizens should play an informed and active role in the governance process is enshrined deeply in the political culture of the United States and is epitomized today by the open town meeting in many New England towns where voters assemble to elect town officers, and to make governmental decisions by enacting bylaws. Nevertheless, there is wide disagreement as to the forms and the extent of citizen participation that are desirable.

At one extreme, the view prevails that voters directly should make all laws and those holding an office should do so on a part-time basis. The early New England town meeting accepted this concept of citizen participation, and made voting and office holding by freemen compulsory.⁵

At the other extreme, the leadership-feedback theory limits the role of citizens primarily to electing periodically for fixed-term government officers who provide leadership in public affairs by proposing policies. This model is reflected in the due process requirement for public hearings on many types of proposed or requested governmental actions.⁶ Citizen feedback on proposals may induce elected officers to modify the proposals before their enactment and implementation. Decision-making responsibility, however, remains with the officers.

If the principle guiding all elected public officers was res publica (the public good), the leadership-feedback concept would be an adequate guide for and check upon decision-making by public officers. Opponents of this type of decision making are convinced periodic election of officers for fixed terms is an inadequate safeguard of the public weal and that more immediate mechanisms must be available to the voters to ensure elected officers act as agents of their constituents when making decisions on important matters. Thus, opponents argue a popular mechanism must be available to voters to remove elected officers accused of malfeasance (bad or corrupt conduct), misfeasance (incompetent performance of duties), and nonfeasance (nonperformance of duties).

The possibility of corrupt behavior by officer holders in the United States long has been recognized. In 1782, Thomas Jefferson stressed the importance of informed citizens in the following terms: “In every government on earth is some trace of human weakness, some germ of corruption and degeneracy, which cunning will discover, wickedness insensibly open, cultivate, and improve. Every government degenerates when trusted to the rulers of the people alone. The people themselves therefore are its only safe depositories. And to render even them safe, their minds must be improved to a certain extent.”⁷

Although his proposal was described as one establishing a spoils system, President Andrew Jackson in an 1829 message to Congress emphasized:

There are perhaps few men who can for any great length of time enjoy office and power, without being more or less under the influence of feelings unfavorable to the faithful discharge of their public duties. Their integrity may be proof against improper considerations immediately addressed to themselves; but they are apt to acquire a habit of looking with indifference upon the public interests, and of tolerating conduct from which an unpracticed man would revolt. Office is considered as a species of property; and Government rather as a means of promoting individual interests than as an instrument created solely for the service of the People. Corruption in some and in others a perversion of correct feelings and principles divert Government from its legitimate ends, and make it an engine for the support of the few at the expense of the many.⁸

Jackson’s remedy relied on the ballot box and frequent elections of all public officers to curb the evil he described and to ensure the popular will and popular government prevail.

Jacksonian democracy was based in part on the democratic theory that each candidate for elective office announces his or her policies and ethical standards, and voters select the candidate reflecting their popular will. If an elected officer does not implement popular policies or live up to ethical standards, the officer may be removed should he or she stand for reelection and replaced by a person representing the views of the majority of the voters.

The recall, however, is designed to correct public officers’ errors of commission and omission by removing them from office before the expiration of their terms of office. The reasons for the use of the recall are not limited to a scandalum magnatum because the recall can be employed in a majority of the recall states for any reason, including disagreement on a policy issue. The Constitution of Michigan, for example, stipulates “the sufficiency of any statement of reasons or grounds procedurally required shall be a political rather than a judicial question.”⁹ However, eight states—Alaska, Georgia, Kansas, Minnesota, Montana, Rhode Island, Virginia, and Washington—specify specific grounds for employment of the recall.

The Nebraska Supreme Court in 1913 opined:

The policy of the recall may be wise or it may be vicious in its results. We express no opinion as to its wisdom with respect to the removal of administrative officers. If the people of the state find after a trial of the experiment that the provisions of the statute lead to capable officials being vexed with petitions for their recall, based upon mere insinuations or upon frivolous grounds, or because they are performing their duty and enforcing the law, as they are bound to do by their oath of office, or lead without good and sufficient reason to frequent and unnecessary elections, they have the power through their Legislature to amend the statute so as to protect honest and courageous officials.¹⁰

In upholding the constitutionality of a city charter providing for the recall, the Washington Supreme Court in 1909 explained: “Like the British ministry, an elective officer under the charter is at all times answerable to the people for a failure to meet their approval on measures of public policy. … Whether the interests of the city will be better subserved by a ready obedience to public sentiment than by a courageous adherence to the views of the individual officer … is a political and not a legal question.”¹¹ However, not all state supreme courts view the recall as a process involving only a political question as is revealed in the detailed analysis of the recall process in Chapter 2.

Are elected officers the delegates or agents of the people? The delegate concept, also known as the trustee concept, posits elected officers will use their good judgment, based on the facts they have gathered and analyzed, to make decisions promoting the public good and are not bound by the wishes of their respective constituents. John F. Kennedy wrote a best selling book—Profiles in Courage—praising certain decision makers for opting for a policy that was not popular with the citizenry yet was viewed by decision makers as being in the best interest of the polity.¹²

The agent concept posits elected public officers must make decisions solely on the basis of the wishes of the electorate. Proponents are convinced that voting in periodic elections is an inadequate safeguard of the public weal, and the ballot box must be continuously available to the electorate to enable them to enforce their will. The ultimate instrument available to the voters in certain states and general purpose local governments is the recall, which allows voters to circulate petitions calling for a special election to determine whether a named officer should be removed from office. If employed frequently, the recall would establish the principle that officers are agents of the voters who have the right at any time to replace their agents. Chapters 3 and 4 explore the frequency and the reasons for the use of the recall in the United States.

Recall supporters maintain elected officers are agents of the voters who possess sovereign power to remove at any time a officer who fails to follow the public’s will as expressed at the ballot box. They also maintain all public officers are legally and morally responsible to the voters, and the recall permits voters to enforce the officers’ responsibility.

Although the theory of the recall is premised on ensuring decision making in accord with the public’s will, the recall also can be employed to remove a public officer accused of malfeasance, misfeasance, and nonfeasance, to deal with situations in which the officer is not removed by the impeachment process, the legislative address process (legislative directive to the governor to remove an officer), or direct gubernatorial action if authorized in the absence of a statute providing for the automatic vacating of an office when the incumbent is convicted of a felony. Due process of law guarantees and restrictions on the use of these alternative removal methods typically make them relatively ineffective, long drawn-out, and costly procedures and thus the recall may be more effective in removing an officer.

The Washington Supreme Court commented on the recall in 1914, and emphasized: “It cannot be questioned that the recall and its usual concomitant, the referendum, are wholesome means to the preservation of responsible popular government. They employed a principle as old as the English constitution. The frequent appeals of the English ministry from a vote of Parliament to a vote of the people on a given measure, requiring the members of Parliament to stand for reelection upon that measure as an issue … is obviously but a recall as to the personnel of the government and a referendum as to the given measure.”¹³

Does a state or local government elected officer have a right to hold office guaranteed by the U.S. Constitution? The answer clearly is no because courts have ruled an election is not a contract and an elected officer has no property interest in the office. The U.S. Supreme Court in 1939 opined there is no U.S. constitutional guarantee—whether procedural due process or contract right—attached to the recall.¹⁴ The U.S....

Table of contents

• Cover
• Title
• Copyright
• Contents
• List of Illustrations
• Preface
• 1 The Sovereign Citizen
• 2 The Legal Foundation
• 3 Recall of State Government Officers
• 4 Recall of Local Government Officers
• 5 The Recall: An Evaluation
• 6 A Model for Voter Sovereignty
• Notes
• Bibliography
• Index
• Back Cover