Recall

NASSAU COUNTY CIVIC ASSOCIATION, INC.

"The government is us, we are the government, you and I." Teddy Roosevelt

Initiative, Referendum

The concept of Initiative and referendum had its start in New York in 1907. Mrs. Harriet M. Johnson-Wood, a lawyer from New York City, founded the state “Direct Legislation League”. The league proved to be ineffective. By 1917, Buffalo’s Referendum provision was the only example of direct legislation in the state. Over time, the legislation allowed for limited Initiative and Referendum in local jurisdictions, but never statewide. An example is the section of the New York City charter that allows voters to propose a charter amendment by petition of 50,000 registered voters (approximately 2% of the city’s voters). This was last used successfully during the Giuliani Administration. 1

In New York’s other 62 chartered cities, Initiative charter amendments can be proposed by petition of 30,000 voters, or voters equal to 10 percent of the previous gubernatorial vote, whichever is less (see Municipal Home Rule Law, Art. 4., Sec. 37). New York State law limits Initiative and Referendum in towns and villages to a narrow range of specified subjects, such as establishment of public parks, playgrounds, and airports.

Referendum and initiative was last addressed by the New York State legislature in the 1999 legislative session. It was to be addressed in the 2001 session, however there is no information to indicate that it was. A mechanism that allows for indirect Initiative & Referendum is a constitutional convention. An effort to allow a constitutional convention ultimately failed in 1997.

In 1999, Governor George Pataki in his first “State of the State” address called for the establishment of the initiative and referendum process, however, the state legislature wasn’t interested in supporting establishing the process. In 2002, Pataki once again called for the legislature to pass a constitutional amendment establishing the initiative and referendum process. The proposal was strongly supported by the state’s Independence Party, Conservative Party and Republican Party. In April , the New York Senate passed the initiative amendment with only three dissenting votes. However, as of the writing of this history, the State Assembly had not acted on the Governor’s proposal. 1A

There are two types of Initiative, Direct and Indirect. The first is a when a proposal by the people is placed directly on the ballot and submitted for approval/rejection by the people. The latter is proposed statues/amendments proposed via a petition submitted to the legislature. If the legislature fails to approve or makes amendments not acceptable to the people, the people can collect the additional signatures if required in order to have the original proposal on the ballot. 27 states have some form of Initiative or Popular Referendum. This includes recall. Teddy Roosevelt said,

Whenever representative government has in actual fact become non-representative there the people should secure to themselves the initiative, the referendum, and the recall, doing it in such fashion as to make it evident that they do not intent to use these instrumentality’s wantonly or frequently, but to hold them ready for use in order to correct the misdeeds or failures of the public servants when it becomes evident that these misdeeds and failures cannot be corrected in ordinary and normal fashion. 2

There are two types of Referendum, Popular and Legislative. The first is when the people have the power to refer through a petition specific legislation that was enacted by their legislature for the people to accept or reject. The latter is when a state legislative official, state appointed constitutional revision committee, or other governmental agency or department submits proposals; constitutional amendments, statutes, bond issues to the people for their approval or rejection. 49 states have legislative referendum. 3

Recall

Recall is a useful tool to ensure that your elected, appointed public officers remember their roles as a servant of whom the people placed their trust. If enough specified signatures are secured by residents of an election district, the recall vote is placed on the ballot. If an office holder is unable to received a majority percentage confirming the people’s confidence, this person losses their seat and a special election is held. If they do receive a majority vote, no further action is taken. 4

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. 5

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. 5

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. 5

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. 5

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. 5

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). 5

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. 5

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. 5

Reasons to support 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 & charter amendments lengthening the term of office of elected officers. 5

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 behavior and may encourage voters to play a more important supervisory role relative to their elected officers. 5

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. 5

It is important to note that some political leaders are concerned regarding the enactment of term limits. Recall is a viable solution. Why should an office holder who is doing a good job be swept out of office even though he or she has the support of the people? The most important aspect of this proposal at minimum is Recall and Referendum, the people’s ability to hold an office holder accountable. Woodrow Wilson said,

"For 20 years I preached to the students of Princeton that the Referendum and the Recall was bosh. I have since investigated and I want to apologize to those students. It is the safeguard of politics. It takes power from the boss and places it in the hands of the people." 6

Let us now move forward to expel apathy by involvement, replace cynicism with empowerment, and tyranny with vigilance. Let us return to the values of true representative government. This is the message of Initiative, Referendum and Recall.

Sources

1.From David D. Schmidt’s book, Citizen Lawmakers The Ballot Initiative Revolution.

1A This excerpt is from the Initiative and Referendum Institute.

2. Teddy Roosevelt’s speech to 1912 Progressive Party Convention

3. The initiative and Referendum Institute, and Ballot Access News can provide additional information.

4. Proposed legislation for the Recall of Public Officer

5. International Institute for Democracy and Electoral Assistance, Joseph Zimmerman, 12/6/97

6. Source unknown