Essay:Why Recall Elections Are Essential

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A recall election is a special election resulting from a petition drive by the people to "recall" or fire a public official. Conceptually it is analogous to a master (the people) firing a servant (the elected official).

A recall embodies the "best of the public" concept by allowing the public to exercise authority and control over its "expert" representatives.

Typically the recall election requires a massive number of signatures (for example, 25% of all registered voters in New Jersey) and a majority vote in the special election. On the same day a replacement is chosen by the voters, and often (including New Jersey) the recalled official may be candidate for the election to replace him.

The justifications for recall elections range from the philosophical to the practical:

  • public officials are public servants, meaning they serve at the whim of the master (the people)
  • recall elections provide greater accountability, which is desirable
  • without a recall mechanism, there is no check and balance on contempt by the public official for the people
  • without a recall mechanism, there is no way for the people to substitute representation in place of an incapacitated official who refuses to resign
  • recall elections have been very successful when used, as in recalling a California Chief Justice (Bird) and Governor (Davis), and a corrupt North Dakota Governor (in 1921)
  • recall elections are the only meaningful deterrent against lying by candidates during campaigns, or candidates switching parties after election
  • recall elections are preferable to the alternatives of a constitutional crisis, a Con Con, and widespread public discontent
  • recall elections enfranchise voters, rather than the disenfranchisement of voters that Justice Anthony Kennedy stressed in the 5-4 decision invalidating term limits
  • there is no entitlement by a Senator to the seat that he occupies, as that seat belongs to the people and not to any individual, as explained by candidate Scott Brown concerning "Ted Kennedy's seat"

In 2010, Rep. Pete Hoekstra (R-MI) sponsored a Voters’ Bill of Rights package ("HJR 71") to support and expand a recall mechanism for congressmen.

Wall Street Journal Editorial Criticizing a Right to Recall

On March 20, 2010, James Taranto published an editorial in the Wall Street Journal criticizing and denying the right of voters to recall their U.S. Senators.

Here is the rebuttal:

Mr. Taranto's criticism of New Jerseyans' right to recall its U.S. Senators (3/20/10) is mistaken. Senators are supposed to be public servants, and a servant can be fired by his master, the people. If the servant cannot be fired, then he is not a servant, and that misguided view of the relationship underlies many of the problems we see today in Washington. In early America, state legislatures would frequently instruct their U.S. Senators how to vote, and it was understood that they would resign if they contradicted instructions. The 17th Amendment granted greater public control over U.S. Senators, not less, and the 10th Amendment reserves to the people any rights not expressly denied, including the right to recall. Justice Kennedy, the swing vote in the 5-4 Supreme Court decision rejecting term limits, emphasized that the defect was how term limits disenfranchise voters from repeatedly reelecting the candidates of their choice. But the right of recall enfranchises voters in a manner consistent with Justice Kennedy's concurrence and the views of a majority of the Court. A right of recall is constitutional and essential to restore accountability to a broken system.
Andy Schlafly
Counsel for the Committee to Recall Robert Menendez from the Office of U.S. Senator

Legal Objections

1. The U.S. Constitution does not expressly permit recall elections for congressmen.

Response: True, but the Constitution does not expressly deny the power either, and the Tenth Amendment is clear that:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Indeed, there has never been an amendment to the Constitution that establishes a right or power by states to do something that is not prohibited by the Constitution. Such an amendment would duplicate the Tenth Amendment, which is already fully effective.

2. The U.S. Senate was designed to be insulated against frequent elections.

Response: Perhaps the Senate as a whole was designed with the staggered election cycles (one-third of the Senate is elected every two years) in order to immunize the entire Senate from transient political fluctuations, but there was no intent to protect the jobs of individual senators. Quite the contrary: Alexander Hamilton stressed the importance of elections in promoting responsiveness by individual senators to their constituents.

3. If you want the right to recall U.S. Senators, then you need to pass a constitutional amendment.

Response: Never in American history has an amendment been ratified or needed to establish the right of some states to do something that is not expressly prohibited by the Constitution. Such an amendment would duplicate the Ninth and Tenth Amendments. Moreover, the Senate would never pass such an amendment allowing their recall, and a Con Con would be necessary. But recognizing a right to recall is far preferable to holding an unlimited Con Con.