Is a State-Based Recall of a U.S. Senator Constitutional?

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.

Back to the basics. 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. In 1610, the free citizens from the Mayflower signed a Compact that they would "enact, constitute, and frame, such just and equal Laws, Ordinances, Acts, Constitutions and Offices, from time to time, as shall be thought most meet and convenient. ..."

This was the first statement on American shores of the concept of popular sovereignty -- that the people hold the ultimate power. 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.

Many people argue that the case of U.S. Term Limits v. Thornton governs, and it prevents any state from using recall against federal officeholders, just as it prevents states from establishing term limits for Members of Congress. This is a misreading of what Thornton did, and did not, do.

Thornton decided that states could not establish a "new and additional qualification" for anyone to run for the Senate or the House. Now, recall does no such thing. It merely says that in those states that provide for recall, members of Congress can be voted out of office, as they were formerly voted into office. In those states, this is part of the election process.

Who gets to decide how elections are conducted? Due to an inability to agree at the Philadelphia Convention, there was a compromise. The voters in each state were to be the same as for "the most numerous branch of the state legislature" in each state. Citizens with property, without property, both black and white -- and in New Jersey, women as well -- voted in the first American election in 1789.

This constitutionally mandated variety in state election laws is why today, the Supreme Court has ruled constitutional that some states require photo IDs in order to vote. It also explains why some states bar convicted felons from voting, with differing requirements to end that prohibition.

It is also why, in various states, a candidate must face the voters between one and three times to be elected to the Senate (it depends on how primaries are conducted, and whether run-offs are required). Accepting recall as part of any state's election laws would add the possibility of one more election, on rare occasions, which the candidates would know about before filing to run.

Another reason why the Thornton case does not dictate the result in this case is that the Tenth Amendment applies here, but did not apply there. Since Congress did not exist until the Constitution was written, there could not have been any "pre-existing right" to be preserved in the states. The right of recall was alive and well in states before the Constitution was written.

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.

The other reason to believe that state-based recall is permitted is in the last clause of the 17th Amendment, which protected the terms and selections of all sitting senators at the time it was ratified. The sitting senators recognized that a version of the Amendment by a Constitutional Convention (about to become mandatory) could have put them all out on the street immediately, to be replaced by elected senators.

Finally, 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.

The final reason why Thornton supports, rather than denies, the validity of recall for senators is the underlying reason for the Thornton decision. As the Court made clear, state-based term limits would inhibit the free exercise of the franchise by the citizens of Arkansas. In the case of New Jersey, or any other state with a similar provision on its books, the right of recall would advance, not inhibit, the exercise of the franchise in those states.

So the one case that many will claim is a barrier to state-based recall of U.S. senators is, instead, a strong support for recall. One learns the meaning and power of any other Supreme Court decision by digging down to the basics, to discover why the Court ruled as it did. In Thornton, the Court protected the right of the sovereign people to choose their own representatives. That is also the basis of the right of recall, and it has been so for more than three centuries.

John Armor practiced law in the U.S. Supreme Court for 33 years. He has written on and taught the subject of constitutional law. He is of counsel to The American Civil Rights Union. John_Armor@aya.yale.edu theacru.org
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.

Back to the basics. 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. In 1610, the free citizens from the Mayflower signed a Compact that they would "enact, constitute, and frame, such just and equal Laws, Ordinances, Acts, Constitutions and Offices, from time to time, as shall be thought most meet and convenient. ..."

This was the first statement on American shores of the concept of popular sovereignty -- that the people hold the ultimate power. 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.

Many people argue that the case of U.S. Term Limits v. Thornton governs, and it prevents any state from using recall against federal officeholders, just as it prevents states from establishing term limits for Members of Congress. This is a misreading of what Thornton did, and did not, do.

Thornton decided that states could not establish a "new and additional qualification" for anyone to run for the Senate or the House. Now, recall does no such thing. It merely says that in those states that provide for recall, members of Congress can be voted out of office, as they were formerly voted into office. In those states, this is part of the election process.

Who gets to decide how elections are conducted? Due to an inability to agree at the Philadelphia Convention, there was a compromise. The voters in each state were to be the same as for "the most numerous branch of the state legislature" in each state. Citizens with property, without property, both black and white -- and in New Jersey, women as well -- voted in the first American election in 1789.

This constitutionally mandated variety in state election laws is why today, the Supreme Court has ruled constitutional that some states require photo IDs in order to vote. It also explains why some states bar convicted felons from voting, with differing requirements to end that prohibition.

It is also why, in various states, a candidate must face the voters between one and three times to be elected to the Senate (it depends on how primaries are conducted, and whether run-offs are required). Accepting recall as part of any state's election laws would add the possibility of one more election, on rare occasions, which the candidates would know about before filing to run.

Another reason why the Thornton case does not dictate the result in this case is that the Tenth Amendment applies here, but did not apply there. Since Congress did not exist until the Constitution was written, there could not have been any "pre-existing right" to be preserved in the states. The right of recall was alive and well in states before the Constitution was written.

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.

The other reason to believe that state-based recall is permitted is in the last clause of the 17th Amendment, which protected the terms and selections of all sitting senators at the time it was ratified. The sitting senators recognized that a version of the Amendment by a Constitutional Convention (about to become mandatory) could have put them all out on the street immediately, to be replaced by elected senators.

Finally, 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.

The final reason why Thornton supports, rather than denies, the validity of recall for senators is the underlying reason for the Thornton decision. As the Court made clear, state-based term limits would inhibit the free exercise of the franchise by the citizens of Arkansas. In the case of New Jersey, or any other state with a similar provision on its books, the right of recall would advance, not inhibit, the exercise of the franchise in those states.

So the one case that many will claim is a barrier to state-based recall of U.S. senators is, instead, a strong support for recall. One learns the meaning and power of any other Supreme Court decision by digging down to the basics, to discover why the Court ruled as it did. In Thornton, the Court protected the right of the sovereign people to choose their own representatives. That is also the basis of the right of recall, and it has been so for more than three centuries.

John Armor practiced law in the U.S. Supreme Court for 33 years. He has written on and taught the subject of constitutional law. He is of counsel to The American Civil Rights Union. John_Armor@aya.yale.edu theacru.org

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