If progressives are mouting a campaign to recall the GOP state Senators who voted to crush labor, and then Governor Scott Walker, then why not include US Senator Ross Johnson as well?Â There would be no better time to do it, and he certainly deserves it.Â I suspect that the answer lies in the fact that Johnson is a federal official, but that’s not necessarily true: federal elections are often settled by state law.
UPDATE: Several people (including a commenter) have said that recalling federal officials is unconstitutional and that it is “settled law” (one person) or the US Supreme Court has decided it (another).Â Neither is right, as far as I can tell.Â The most recent case on point is Committee to Recall Robert Menendez v. Wells, 7 A.3d 720 (N.J. 2010), which concluded that it is unconstitutional.Â But that’s the New Jersey Supreme Court, not a federal court.Â And if there is any authority on point regarding this, the New Jersey Supremes couldn’t find it.Â Maybe the point is that it’s hard to generate the revenue to mount an effort of this nature, knowing that there is a decent chance that it will be thrown out.Â But that’s why a recall move against Johnson would work: the effort is already in place.
Author: Jonathan Zasloff
Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees.
Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses.
Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.
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7 thoughts on “Election Law Question of the Day”
According to Wisconsin law, he needs to be in office for a year before he can be recalled. WI law does provide for the recall of federal officials, but recalling feds has been ruled unconstitutional by the U.S. Supreme Court. I think the reasoning was that the constitution lays out the qualifications standards for office and states can’t modify them.
However, that does seem to leave a loophole. One of the requirements in the Constitution was that representatives and senators be residents of their states, and states do have the authority to define what a resident is. So the state could pass a law saying that if you are recalled, you lose your legal residency in the state of Wisconsin for the remainder of your term.
Hi Greg —
Interesting, particularly re the loophole, although quite honestly I think that the provision to strip someone of state residency would be unconstitutional, under both the 14th Amendment and the right to travel. Do you have a cite on the US Supreme Court opinion? I’m not saying that to doubt you, but rather in order to update.
Wisconsin law has nothing to do with it. Federal elected officers cannot be recalled, period. This was made quite clear in the Republican attempted recall petition in NJ last year. So I completely agree with Greg on that point, although, as I recall the justification it was each chamber that decides the qualifications, not some kind of extra-legislative constitutional principle (other than the fact that it is the Constitution that grants the chambers this capacity). BTW WI has quite a number of unconstitutional statutes on the books, including two anti-abortion ones. For some reason, the legislation does not want to remove them. Perhaps they are waiting for all those constitutional decisions to be overturned, like the ones on 2nd amendment.
Mississippi didn’t ratify the 13th Amendment until 1995. A lot of states have weird stuff on their books, either because of inertia or because they’re hoping for a change in the judicial winds.
The various provisions of the Constitution dealing with eligibility for office, term of office, and removal from office have always been read very literally and very exclusively by the Court, even if they haven’t all been subject to review at the highest level. The reason that federal elections are often determined by state law is because the Constitution explicitly provides, regarding the House and Senate, that “the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature” and “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations,” and regarding the President that “each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors” to the electoral college. These matters are explicitly left to state law.
The term of office for a Senator, however, is “six years.” It is not “six years, subject to recall,” “up to six years,” “six years except as may be provided by state law,” or with any other qualification. The only way provided in the Constitution to remove a Senator from office absent his death or resignation is to get two thirds of the Senate to vote to expel a member. That’s it. That is the one and only way to remove a Senator from office absent death or resignation. There is really no serious legal controversy about any of this.
States have the power, absent Congressional action to the contrary, to set the time, place, and manner of voting for the Senate. States do not have the power to alter the duration of a Senator’s term whether it be by providing for recall or changing the maximum duration.
Has Wis. Op. Att’y Gen. 54-79 been overruled?
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