ACRU legal counsel John Armor wrote this column on March 17, 2010.
On Tuesday, the New Jersey Court of Appeals cleared the way for the recall of Sen. Robert Menendez (D-NJ) to proceed. New Jersey is one of nine states whose constitutions provide broad language with regard to recalling “all, every, any” elected official. This decision could severely endanger the 11 other sitting Senators (all Democrats) in those states, who are not up for re-election this year but could be subject to citizen recall efforts. (For details go to www.recallcongressnow.org.)
The American Civil Rights Union filed an amicus brief in this case, which landed in court when the former N.J. Secretary of State denied the approval of a recall petition by several Tea Party groups, declaring that its state constitution was unconstitutional.
The people of New Jersey, using the initiative process in their constitution, had guaranteed their “basic right” to recall all elected officials including U.S. Senators with a provision passed in 1993 by a 2-1 margin. The intent of the people was crystal clear. The court ruled that the recall of U.S. Senators was not “so clearly invalid” as to require “a judicial declaration thwarting the will of the voters.” The court stayed its order to the Secretary of State to approve the petitions for 35 days to allow the defendants to appeal to the state Supreme Court.
Because of the basis of this decision, the strength of its conclusions, and the fact that it was unanimous, it’s unlikely that the N.J. Supreme Court will reverse this finding, and bar the recall effort. However, the Secretary of State, the Attorney General or Senator Menendez, who are the defendants in the case, have the right to appeal if any chooses to do so.
Under New Jersey law, supporters of the recall petitions would have 320 days after approval of their forms to gather and file 1,300,000 signatures. That would place the recall of Sen. Menendez on the next available statewide ballot.
This decision has importance far beyond the borders of New Jersey. Altogether, 18 states have recall provisions in their laws. Nine of those may well apply to Members of Congress. Any of the 26 states that lack recall laws but do have initiative laws could obtain the right to recall the way New Jersey did — by vote of the citizens themselves.
As for what may happen when the U.S. Supreme Court ultimately gets this issue, note the language in the original U.S. Constitution. It established no uniform law of elections for federal office. Instead, it adopted diverse state election laws by adopting the standard of the same voters who could vote for “the most numerous branch of the state legislature.” As a result, in the first U.S. election, blacks and people not owning property voted in some states. And in one state, interestingly, New Jersey, women voted.
The same adoption of varying state election laws occurred in 1913, when the 17th Amendment was passed to make Senators elected by the people, not appointed by the state legislatures. That amendment repeated the “most numerous branch” language from the original Constitution. This is one reason why the U.S. Supreme Court has accepted as constitutional that some states bar convicted felons from voting, with varying methods of lifting the prohibition. By contrast, other states allow felons to vote, no questions asked.
It is also why the Supreme Court has upheld voter ID laws. Some states require voters to show picture ID, usually a drivers license, though state ID cards for disabled people in lieu of licenses also serve. Other states have no such provision. Again, that difference in state election laws is fully constitutional according to the Supreme Court.
Defendants in this case claimed that the 1995 Thornton case controls. There the Supreme Court struck down state-established term limits for Congress as unconstitutional. Yet one of the reasons the Court so ruled was that it interfered with the voting rights of the sovereign people. In this case, upholding the rights of the people to vote as they choose supports, not opposes, the state provision.
More likely than not, when the Supreme Court rules on the recall of Senators, it will conclude that this question belongs to the sovereign people in each state, and that others may follow New Jersey’s example if they so choose to make recall as much a part of their election laws as the initial election which places the Senators in office in the first place.