Vox Populi
A Letter to the Editor

I am glad California voters have the ability to recall the Governor
Monday, August 11, 2003

by Kenneth Scot Stremsky

I am glad California voters have the ability to recall the Governor. I wish voters in every state had the ability to recall Governors, members of Congress, and the President of the United States of America.

I do not think it should be easy to recall an elected official. It should take at least a sixty percent vote to remove an elected official.

If a Governor is removed from office, the state legislature could pick a temporary Governor who could serve till an election could take place which could be three months after the recall election.

Governors could pick temporary members of Congress until an election could take place which could be three months after the recall election. I think it is a bad idea to allow Governors to pick permanent Senators which is the case now.

If the President of the United States of America was removed from office, the Vice President would become President.


Kenneth Scot Stremsky


Richard E. Berg-Andersson, on behalf of 'The Green Papers', responds:

I first want to strongly disagree with Mr. Stremsky's notion that a 60 % vote be necessary to recall an elected official where Recall is authorized. The petitioning procedure used in all Recall procedures in this country alone ensures that Recall is not a very easy thing to even get on the ballot before the term of office of the elected official in question comes to an end anyway; once Recall is on the ballot, a mere majority of the voters should be sufficient (I don't view this as having any inherent difference re: the mere majority of the vote required to adopt a State Constitutional Amendment in those States that require a vote of the People for such a purpose).

I do agree with Mr. Stremsky that it should not be at all easy to recall an elected official in the first place. Indeed, one of the more intriguing questions of American Constitutional Development is as to whether or not Recall itself well fits within the concept of "republican government" held by the Framers as well as how that very concept is used in the Constitution of the United States itself (for example, the opening words of Article IV, Section 4: The United States shall guarantee to every State in this Union a Republican Form of Government...). The Framers' political (hence governmental) philosophy clearly included the notion of a representative assembly as being essential to such "republican government" and it is readily apparent that the threat of recall of, say, legislators (who, after all, can't be impeached and removed from office in the manner of executive and judicial officers) might- or so it could be argued- very well make a legislature even more representative (indeed, the earliest forms of recall at the beginning of the last century seem to have been as much geared towards the removal of legislators [originally at the local level] as any other officers of the same- or, for that matter, any higher- level of government); at the same time, however, it has to be remembered that the Framers abhorred Democracy alone as potentially violative of civil rights and liberties (their conception of "representative assembly" was one which would primarily effect consensual restraint of the People themselves; allowing the People so restrained to then recall the very legislators doing the restraining before the next election would have defeated this purpose: the Framers evidently believed that frequent elections of public officers would be all the Democracy their new Republic could stand!).

Basically, the Framers saw inherent evils in all the forms of government with which they were most familiar: Monarchy could so easily become Despotism; Aristocracy could well sink into Oligarchy; Democracy could quite quickly descend into Anarchy, or so they thought-- and all these negative aspects of each could be, in the Framers' minds, well covered by the term Tyranny as the Patriot cause in the American Revolution had already defined it. But, at the same time, these same Framers (certainly much more so than the political leaders of today's pro-Democratic/anti-Monarchical, anti-Aristocratic Western World) also saw as much- if not more- value in Monarchy and Aristocracy as they found in Democracy and their new Federal system reflected this, with a Monarch (the President of the United States) indirectly elected through the device of the Electoral College (at least as the Framers had originally conceived it [even though it was destined to never work that way!]) and an Aristocratic "second house" in Congress (the United States Senate) chosen not by the People themselves but by the representatives of the People (the State Legislatures), the both to better offset the Democratic "People's house" in Congress (the U.S. House of Representatives). So, while the Framers' attitude toward a Recall procedure they could not have possibly foreseen is, perhaps, an open question as regards the legislative branches of government, one could well argue that they would not have seen Recall of executive officers or anyone in their Judiciary completely independent of the other two branches of government as something at all desirable (their provisions for Impeachment seem to imply this).

But, regardless of all this, had the Framers foreseen Recall and, in addition, seen it as a desirable option (at least insofar as the legislative branch is concerned), it is clear that they would not have wanted it to be so easy to remove an elective officer before his term of office had been completed. So, yes, Mr. Stremsky is correct-- I merely question his methodology (a 60% threshold) of achieving this goal.

The United States Supreme Court rarely made definitive statements regarding the essence of just what a "republican form of government" actually is. In the case of Minor v. Happersett  (21 Wall. [88 U.S.] 162)- an 1875 case in which a woman suffragette sued a Missouri registrar of voters for refusing to allow her to vote in the 1872 Presidential Election and argued that the provision of the then-Missouri State Constitution restricting the elective franchise to males did not effect a "republican form of government" as guaranteed by the United States to the States, besides also violating her "privileges and immunities" as a United States citizen (it having already been held that, their not having the right of suffrage at the time notwithstanding, women were just as much citizens as men); this case, by the way, apparently was already in the courts of Missouri before the decision of the so-called Slaughterhouse Cases (16 Wall. [83 U.S.] 36) had (wrongfully, in my opinion- but the Nation's highest Court has not seen fit to reverse to this very day!) pretty much gutshot that one of the three main civil liberties clauses of the 14th Amendment: the case came to the United States Supreme Court on Writ of Error from the Missouri Supreme Court, which had ruled against Mrs. Minor. Then still-new Chief Justice Morrison Waite wrote the Opinion for a unanimous Court in Minor and, after ruling against the Appellant by affirming the Judgment below (and, at the same time, upholding the basic premise underlying the decision in the earlier Slaughterhouse Cases [most interesting, considering that three of the four Justices who had dissented in that earlier case now were voting with the majority-- perhaps Mrs. Minor's audacity had rubbed the "old boys" just a little the wrong way? ;-)]) and, in the course of that opinion, noted (as a portion of the reasoning behind the Court's firmly dismissing Mrs. Minor's alternative claim of the Right to Vote as necessary to her State's "republicanism"):

It is true that the United States guarantees to every State a republican form of government... [t[he guaranty is of a republican form of government. No particular form of government is designated as republican, neither is the exact form to be guaranteed, in any manner especially designated. Here, as in other parts of the instrument, we are compelled to resort elsewhere to ascertain what was intended.

The guaranty necessarily implies a duty on the part of the States themselves to provide such a government. All the States had governments when the Constitution was adopted. In all the people participated to some extent, through their representatives elected in the manner specially provided. These governments the Constitution did not change. They were accepted precisely as they were, and it is, therefore, to be presumed that they were such as it was the duty of the States to provide. Thus we have unmistakable evidence of what was republican in form, within the meaning of that term as employed in the Constitution.

Putting aside the question as to whether or not the governments of the States were, indeed, "accepted precisely as they were" (underlining, obviously, my own)- for the existence of a new Federal Government would, almost by definition, force the readjustment, over time, of pretty much every aspect of the relationship of said governments to the Framers' then-brand new "Supreme Law of the Land", Chief Justice Waite's insistence that "[n]o particular form of government is designated as republican, neither is the exact form to be guaranteed, in any manner especially designated" leaves wide open the possibility of a Recall of all elective officers in a State- not just the legislators, but the executive and judiciary as well- as being as "republican" in form as anything else!

In addition, in the case of In re Duncan (139 U.S. 449 [1891]), Waite's successor as Chief Justice, Melville Fuller, wrote (he here also writing for the Court majority):

By the Constitution, a republican form of government is guaranteed to every State in the Union and the distinguishing feature of the form is the right of the People to choose their own officers for governmental administration and pass their own laws by virtue of the legislative power reposed in representative bodies whose legitimate acts may be said to be those of the People themselves.

On the one hand, Fuller's definition emphasizes the Framers' own notion of a representative assembly acting on behalf of (and, thus, somewhat insulated- until they are next up for election, of course- from the direct influence of) the People, which might seem to put the "ol' KI-bosh" on the notion of a State allowing for Recall being within the Constitution's "republican form of government". Yet, his further observation that "legislative power" is "reposed in representative bodies whose legitimate acts may be said to be those of the People themselves" seems to uphold the notion that all legislative power is, in reality, theoretically held by the People alone and is, thus, merely granted to the legislature (as well as the other organs of government) through the very Constitutions (State and Federal) under which the People live and which they themselves acknowledge, where not also approve. If this be so, then the Recall is simply- like the Initiative and Referendum (including referenda on whether or not an amendment to a State's Constitution should be adopted)- the People taking their inherent power to govern themselves back from those to whom they happen to have delegated it at the last election for a particular elective office.

In the end, of course, this discussion is very much the empty intellectual exercise. As I myself pointed out when this very website [see my 13 September 2000 Commentary entitled "AN ELECTORAL VOICE FROM THE CARIBBEAN?"] addressed the rather bizarre notion (first put forth by a Federal judge in Puerto Rico) that residents of a U.S. Territory (outside of the District of Columbia, of course) had the same right to choose Presidential Electors that voters in a State had (and one can only imagine the havoc- when combined with the eventual Florida 2000 debacle- this might have caused if it had actually been upheld on appeal!) At the time I noted that, were this decision to be upheld on appeal to the First Circuit Court of Appeals in Boston (again, it wasn't), it would be Congress that would have to sort out the impending mess that would result (the presumption was that Al Gore would have won any Puerto Rican "Electors", as the pro-Commonwealth status/anti-Statehooders [mostly aligned with the Republicans] had already announced they would be boycotting any "Presidential Election" on the island come that November) because the controlling opinion within American Constitutional Law would pretty much be that of Luther v. Borden (7 How. [48 U.S.] 1) and I even quoted from Chief Justice Roger Taney's opinion in that case, in which- among other things- he noted that

[t]he Constitution of the United States as far as it has... authorized the general government to interfere in the domestic concerns of a State, has treated the subject as political in its nature, and placed the power in the hands of that department

as well as that

[w]hen the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal. It is true that the contest in this case did not last long enough to bring the matter to this issue; and as no senators or representatives were elected under the authority of [the short-lived government set up by "Dorr's Rebellion" in early 1840s Rhode Island], Congress was not called upon to decide the controversy. Yet the right to decide is placed there, and not in the courts.

Since Congress has evidently never failed to seat either of California's two United States Senators nor any of its Representatives in Congress since the election of the 63rd Congress in 1912 (the first Congressional elections since California first adopted Recall on a statewide basis) on grounds that California having Recall is violative of a government "republican" in form, we must presume that- by definition- Recall is, therefore, not at all incompatible with a "republican form of government". Thus, the debate above is, in reality, quite moot.

Having said this, I do take issue with Mr. Stremsky on a few other items in his 'vox Populi' above:

First of all, in States with a Lieutenant Governor (though, to be fair to him, it must be noted that Mr. Stremsky's home State of New Hampshire- like my own New Jersey, among other States- has no such officer), the issue of who should be what he calls a "temporary Governor" is already predetermined: thus, the State's legislature need not be involved. Secondly, one of the major reasons the two issues (whether an elected official should or should not be recalled and, if so, who should replace the recalled official) are joined together in one election, instead of holding two separate elections, as Mr. Stremsky suggests, is that of costliness if two elections had to be held (it would be much too easy for the voter to say "yeah-- so and so is a political skunk-- but why should I pay for two elections?"; the supporters of an official facing a recall petition drive would then not be appealing to its rejection on grounds of the officer's merits but, rather, on baser, financially-driven concerns for the average voter- even in cases where merit might be the last thing on which an official's supporters could hang their hats! Recall can only serve well where it is simply an issue of retaining or not retaining the official in question in his or her current office without unnecessarily jacking up the cost of the Recall): therefore, I do not agree with Mr. Stremsky's call for what he calls the "temporary Governor" serving in between two separate elections.

I do think that the current Recall system in California suffers with an inherent contradiction: successors are being elected to an office before anyone can possibly know if a successor is even needed! Much better would have been the implementation of the original Recall plan first adopted by the City of Los Angeles a century ago, in which the Recall election is really a new election for the office held by the elected official facing recall: one special election would be called when and if the recall petitions could be certified as having the required number of authorized signatures; instead of a question as to whether the official should be recalled followed by a list of potential successors on the ballot from which the voter chooses (regardless of whether the voter favors recall or not), there would be an election in which the official facing recall could (if he/she so chooses) also run (obviously, if the official facing recall wins the special election, he/she is retained in office until the end of the term; if the recalled official loses, the winner of the special election takes over the office in question and serves out the term [unless he/she is later recalled, of course!]) However, it appears that California opted for a recall question/vote for a successor combination in order to avoid having the official being recalled running as his own potential successor; still, I myself prefer the older "special election as recall" procedure just outlined.

Finally, a few words re: Mr. Stremsky's comments on the relationship of Governors to Congress: Governors do not, in fact, currently pick what he calls "permanent Senators". Yes, it is true that- in the vast majority of States- the Governor can, and almost always does, fill a vacancy in the U.S. Senate with a temporary replacement by mere appointment (though there are a few States where the Governor does not have this power-- Oregon [re: the Special Election to fill the seat vacated by the resignation of Senator Robert Packwood back in the mid-1990s] comes immediately to mind) but any such temporary replacement usually only serves until a new Senator is elected and qualified (the only exceptions being [and not always, by the way!] when a Special Election would otherwise coincide with a General Election for a full six-year term, in which case the appointee finishes out the extra two months after said General Election). The fact that, in most States, the Governor's appointee might serve until at least the next regular Congressional Election is the result of a choice made by the elected representatives of the People of those States (primarily as a cost-saving measure); there are, after all, several States (Texas, for example [see the 1993 Special Election which elected Kay Bailey Hutchison to finish the term of Senator Lloyd Bentsen, who had resigned to join Bill Clinton's Cabinet]) which requires a Special Senate Election within only a few months of a vacancy. If the People of a given State do not at all like temporary appointees of the Governor serving in the U.S. Senate as long as they do before having to face an election, they can- of course- always change this by law; but then they had better not complain if any such intermediate Special Senate Elections hit them right in the pocketbook! The simple fact is that statewide elections are generally expensive!!

As for Mr. Stremsky's notion of State Governors being allowed to appoint "fill-in"s in the U.S. House of Representatives pending a Special Congressional Election in a given District where a vacancy has occurred, that is not only a very good idea but one which was actually, albeit briefly, considered by the 107th Congress in the wake of the September 11th Terrorist Attacks (in which the White House and- most likely- the Capitol were apparent targets) but no Constitutional Amendment (which would, of course, be required in order for this to be authorized) ever emerged. Keep in mind that, not only would 2/3 of the members of each house of Congress "present and voting" be required to send any such Amendment out to the several States, but then also 3/4 of the States (currently 38 of the 50) would be necessary to subsequently make any such Amendment part of the Constitution. But, to my mind, the potential for a large number of vacancies in the House as a result of a terrorist attack is a "loophole" nowadays (given September 11th, the Senate Office Anthrax Scare which followed, etc.) looming as large as that involving Presidential Succession which was clearly seen in the wake of President Kennedy's assassination in 1963 and which was, within a few short years, largely plugged by the 25th Amendment.


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