On August 30, the American Civil Rights Union (ACRU) filed an amicus brief in support of Tea Party activists arguing that North Dakota law does provide for recall of U.S. Senators. Tea Party activists had previously filed with the Secretary of State for approval of petitions for the recall of Senator Kent Conrad. They were denied by the Secretary of State citing
an opinion from the state Attorney General that the North Dakota Constitution did not provide for the recall of U.S. Senators. However, the state Constitution expressly states that recall applies to “all elected officials of the state.”
The Recall Committee sued the Secretary of State seeking enforcement of the law, filing in the state Supreme Court which has original jurisdiction as provided in the state Constitution. The Supreme Court issued an Order providing for a briefing schedule and oral argument in October.
The legality of recall of U.S. Senators is now before 2 state Supreme Courts, New Jersey, where a ruling is still awaited on briefs and oral argument submitted in May, and now North Dakota. A New Jersey state appellate court has ruled that the recall of New Jersey Senator Robert Menendez can go forward.