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
[Taken from http://www.potlatch.net/main/english/es/esc01c.htm
]
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