January 19, 2010

A Pointed Reminder

Every now and then I see some well-meaning individual pushing for the recall of some federal elected official by the voters of their state/district. I smile wistfully, because as much as I like the idea of recall, I know they are tilting at windmills with their efforts – because our federal Constitution does not allow for the recall of Senators or Representatives.

Take this situation in New Jersey.

On September 25, 2009, a Notice of Intention was filed in the Secretary of State’s office by a recall committee formed by members of the Sussex County Tea Party, a local grass-roots group and member of the statewide coalition, NJ Tea Parties United. The group seeks to initiate a special election in NJ to recall Senator Robert Menendez. In accordance with NJ election law, the first steps in that process are for the interested parties to form a committee to sponsor a recall petition, and file a Notice of Intent with the Secretary of State’s office. The Secretary of State is then required to determine whether the submitted notice and proposed petition conform to the statute’s requirements and either approve or deny the notice within three days. If denied, the reasons must be stated and the committee permitted to amend and resubmit the filing. Once approved, the committee then circulates the petition amongst registered voters in the state, collecting the signatures of those in support of calling for a recall election. Only if and when the committee collects the necessary number of signatures – 25% of the total registered voters in the general election that preceded the filing of the notice – can a recall election be scheduled.

* * *

Yet, on January 11th, 2010, by her written response to the recall committee, Secretary of State Nina Wells seemingly violated the Constitutional rights of the Committee, its members, and those who want to sign the petition, when she wrote:

“It has been determined that the qualifications and election of a Member of the United States Senate is a matter of exclusive jurisdiction of federal authority and that neither the United States Constitution nor federal statute provide for a recall proceeding for a federally-elected official.

Therefore, in my capacity as the Chief Election Official of the State of New Jersey, I hereby determine that neither the Notice of Intention to Recall nor the proposed Petition can be accepted for filing or review.”

Some seem outraged at this determination, but I think the decision made by the Secretary of State is exactly correct – for precisely the reason put forward by Matthew J. Franck over at National Review.

The term of a U.S. senator is six years, unconditionally, and nothing a state says to the contrary (even in its constitution) can have any effect on this fact. Even before the Seventeenth Amendment, when state legislatures rather than voters chose U.S. senators, no "recall" was possible. Under the Articles of Confederation, members of the unicameral Congress had one-year terms, were limited to serving three years in any six, were paid by their states, and could be recalled at any time by the legislatures that chose them. The framers of the Constitution consciously rejected every one of these features, fixing longer terms in place for both houses of the new bicameral Congress, imposing no term limits or rotation requirement, paying members out of the federal treasury, and making no provision for recall. The duration of a House member or senator's term of office is set by the Constitution that calls the office into being, and cannot be changed by the action of a state even through its constitution, either by alteration of the fixed term length or by giving a power to the people to shorten a serving member's term at the polls. The principle of the supremacy of the federal Constitution over each and every state constitution (declared in Article VI) is all we need to know here. And if the framers of the Constitution had wanted to make it possible for states to shorten the terms of senators, they knew how to frame language permitting that option. They didn't.

The terms are set in the Constitution. There is no provision allowing for recall. And as we saw with the effort by some states to impose term limits on federal elected officials struck down by the courts as outside the scope of state power. By analogy you get the same result with recall – even if a state puts it in their constitution, it cannot override the US Constitution in that regard.

Ought recall be permitted? That is an entirely different issue. Ought an amendment be sent to the several states for consideration and possible ratification to allow it? Perhaps. But the current situation is such that any attempt to recall a Congressman or Senator is forbidden.

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