Posted by: Debby Durkee | April 1, 2010

Is state-based recall of a senator constitutional?

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Is state-based recall of a senator constitutional?

As states gear up to repeal Obamacare as unconstitutional, there’s another interesting state challenge to conventional wisdom brewing in New Jersey: Recall of a sitting U.S. senator by the citizens of a state. This should be an interesting case to watch. In the original Constitution senators were chosen by the state legislators rather than elected, but the 17th Amendment changed that. Now that same 17th Amendment and other Court decisions might actually give a boost to challenges by the voters to recall a senator not doing the bidding of the state’s residents. This is from the American Thinker website and is written by John Armour, a lawyer who has argued in front of the Supreme Court for 33 years.

Whether citizens of a state have the right to recall from office a sitting U.S. senator is no longer an academic question. The second-highest New Jersey appeals court has just ruled that such an effort can proceed against Sen. Robert Menendez (D-NJ).

 Several other states have provisions in their state constitutions and laws that may also allow recall efforts. And by the common provision of initiative by the people of state laws and constitutions, similar processes could be established in other states.

So the question that has never been raised in the U.S. Supreme Court before will most likely be decided there within the next year.

This column is not a legal brief — just a summary of main points. With that said, this lawyer, whose eighteen briefs in the U.S. Supreme Court have been mostly on election law, believes that the answer is yes — recall is constitutional.

… Recall was available for the voters of a colony to remove an official with whom they had become dissatisfied. It first appeared in New England in 1639. The idea of the voters removing an official and/or changing the underlying laws is older than that…

…The best-known such statement appears in the Declaration of Independence. Jefferson’s words, adopted by Congress on 2 July 1776 (not a misprint), state:

That to secure these [God-given] rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.   Snip —

When the 17th Amendment was ratified and went into effect to make senators elected by the people rather than appointed by the state legislatures, it provided additional reasons to uphold recall where provided. This Amendment repeated, word for word, the language of the basic Constitution that the state voters would be those for “the most numerous branch of the state legislature.” It left to the states the definition of who could vote and how the elections would be conducted.  Snip –

most of the states whose laws and constitutions allow recall of elected officials exclude recall of judicial officials. That is because many of the states that have elections involving judges separately provide for “recall” of judges through a “retention” election. But this has the same effect that the Mayflower Compact and the Declaration of Independence sought.

Retention elections occur at required intervals, usually ten years. The name of the judge is automatically placed on the ballot with the question, “Shall Judge Smith be retained in office?” If a majority of the voters vote in favor, Judge Smith is retained in office. But if a majority is dissatisfied and vote no, then the judge is immediately removed.

Recall of elected officials is a powerful remedy that is seldom used. This does not diminish its importance in those rare instances when the voters heartily disapprove of the conduct of an elected official after he or she has taken office and has a track record. Impeachment of presidents is a dire remedy that also has rarely been used. That is no argument that it should not exist. Snip –

So, folks, if you have a senator who has not been representing the state and has instead started representing the executive branch or his party, then check your state’s laws to see if recall is an option. Let’s keep up the pressure on these elected officials who don’t seem to think they have to answer to the people until six years after the election. Read it all here:


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