Legislative Recalls

Constitutional and statutory provisions in twenty-six states of the United States authorize voters by petition to place the question of the removal of all or specified public officers on a referendum ballot prior to the expiration of their terms of office. In addition, municipalities in "home rule" states may draft a new charter or charter amendment providing for the recall. The state legislature in several states lacking constitutional or general statutory "home rule" provisions has enacted special charters for local governments containing authorization for employment of the recall by voters. The constitutional or statutory recall provision in six states excludes judges from the recall. Seven states permit only one attempt to recall an officer during their term of office, but three states allow a second attempt if proponents reimburse the state for the cost of the first recall election.

The use of the recall is subject to restrictions contained in constitutional, statutory, and local charter provisions. Only elected officers are subject to the recall with the exceptions of the Montana recall law and a small number of local government charters, which permit the recall of administrative officers. Furthermore, most recall provisions prohibit its use during the first 2 to 12 months of an officers' term and during the last 180 days in 5 states.

Whether the recall is a political or a judicial process varies from state to state on the basis of constitutional or statutory provisions or court rulings. In states where the recall is a political process, traditional rights protecting defendants do not apply since the authorizing provision does not mandate that the targeted officer must be charged with cause - malfeasance, misfeasance, nonfeasance, or violation of oath of office. If the process is a judicial one, the targeted officer enjoys traditional judicial guarantees.

The recall process, in common with the initiative and the protest referendum, commences with the filing by ten petitioners with the secretary of state or local clerk of a notice of intention to circulate petitions for an election to determine whether a named officer should be removed from office. The notice usually includes a 200 word statement of reasons for the proposed recall, and the named officer may file a 200 word response. Subsequently, the secretary of state or local clerk prints official petitions which are made available to proponents who most commonly are required to collect signatures of registered voters equal to twenty-five percent of the votes cast for gubernatorial candidates in the last election or for candidates for the involved office. California and Georgia have geographical requirements relative to the minimum number of signatures that must be collected in each of five counties or each congressional district, respectively.

Although the required signatures are collected, a recall election is not held in eight states provided the targeted officer resigns within five or ten days of certification of the required signatures. If an election is scheduled, the reasons for removal of the officer and the officer's defense, up to a maximum of 200 words each, are printed on the ballot. Voters in nine states are limited to deciding whether the officer should be recalled. If the officer is removed, a successor is elected in a subsequent special election. In the other states, voters decide whether to remove the officer and simultaneously vote to elect a successor in the event the officer is removed.

Early experience with the recall revealed that an officer could be removed from office by a majority vote, but is reelected by a plurality vote if three or more candidates split the votes. To prevent this occurrence, constitutional and statutory provisions and local government charters stipulate that an officer may not be a candidate for reelection if the recall is successful. Furthermore, these provisions stipulate that a targeted officer who resigns may not be appointed to the same or similar office for a period of two years. Officers subject to the recall are not limited in spending their own funds to retain office by state corrupt practices (campaign finance) acts as the result of the United States Supreme Court's ruling in Buckley v. Valeo, 424 U.S. 1 at 143 (1976).

Classical representation theory is premised upon the belief that regularly scheduled elections are sufficient to ensure that elected officers will be accountable and responsive to the voters. Governmental corruption and unrepresentative governing bodies in the post civil war period in the United States generated several reform movements including the populists whose agenda sought to place the citizens back in control of government. They advocated the recall, initiative, and protest referendum. The latter two were authorized first by a South Dakota constitutional amendment in 1898. The first governmental unit to adopt the recall was the city of Los Angeles whose 1902 "home rule" charter also included the initiative and referendum.

The original opponents of the recall argued that there was no need for this control device since other methods - impeachment process, legislative address (directing the governor to remove a named officer), and statutes providing for automatic vacating of an office upon conviction of a felony - exist to remove officers who abused the public trust. Opponents also argued the recall would destroy representative government by restraining energetic officers, discourage qualified persons from seeking public office, allow the losing political party a second opportunity to win the office, encourage frivolous harassment of officers, and permit removal of officers for inadequate reasons. Furthermore, it was maintained that the recall would destroy judicial independence.

Recall proponents advance six arguments. They maintain the device (recall)

• Strengthens popular control of government,
• Allows voters to correct electoral systems failures which are the product of a long ballot or the plurality election rule,
• Reduces voter alienation,
• Educates the electorate,
• Facilitates the removal of constitutional restrictions on state legislatures, and
• Encourages votes to approve constitutional and charter amendments lengthening the term of office of elected officers.

Experience with the recall in general supports the recall proponents. It seldom has been used to remove elected state officers (one governor, eight legislators, and one judge), but has been employed more frequently to remove local government officers. Other removal methods seldom are applied. Although it is difficult to measure, it appears that the existence of the recall encourages public officers to be more accountable and responsive to their constituents. The threat of the use of the recall may cause elected officers to reconsider their positions on issues and/or behaviour and may encourage voters to play a more important supervisory role relative to their elected officers.

Note to readers: while the United States is the primary case study of the use of legislative recall, the Canadian province of British Columbia introduced legislative re-call (re-election) by petition (40% of registered voters) in 1995.  Legislative recall has also been introduced in Venezuela under Chavez by petition of any number of voters above the number of votes originally received 

Author: Zimmerman, Joseph
Date created: 12/06/1997
Last modified by: Anna Katz

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