https://www.americanthinker.com/articles/2010/04/is_a_statebased_recall_of_a_us.html
April 1, 2010
Is a State-Based Recall of a U.S. Senator Constitutional?
By John Armor
Whether citizens of a state have the right to recall from office a sitting U.S. senator is no longer an academic question. The second-highest New Jersey appeals court has just ruled that such an effort can proceed against Sen. Robert Menendez (D-NJ).
Several other states have provisions in their state constitutions and laws that may also allow recall efforts. And by the common provision of initiative by the people of state laws and constitutions, similar processes could be established in other states.
So the question that has never been raised in the U.S. Supreme Court before will most likely be decided there within the next year.
This column is not a legal brief just a summary of main points. With that said, this lawyer, whose eighteen briefs in the U.S. Supreme Court have been mostly on election law, believes that the answer is yes recall is constitutional.
Back to the basics. Recall was available for the voters of a colony to remove an official with whom they had become dissatisfied. It first appeared in New England in 1639. The idea of the voters removing an official and/or changing the underlying laws is older than that. In 1610, the free citizens from the Mayflower signed a Compact that they would "enact, constitute, and frame, such just and equal Laws, Ordinances, Acts, Constitutions and Offices, from time to time, as shall be thought most meet and convenient. …"
This was the first statement on American shores of the concept of popular sovereignty – that the people hold the ultimate power. The best-known such statement appears in the Declaration of Independence. Jefferson's words, adopted by Congress on 2 July 1776 (not a misprint), state:
That to secure these [God-given] rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.
Many people argue that the case of U.S. Term Limits v. Thornton governs, and it prevents any state from using recall against federal officeholders, just as it prevents states from establishing term limits for Members of Congress. This is a misreading of what Thornton did, and did not, do.
Thornton decided that states could not establish a "new and additional qualification" for anyone to run for the Senate or the House. Now, recall does no such thing. It merely says that in those states that provide for recall, members of Congress can be voted out of office, as they were formerly voted into office. In those states, this is part of the election process.
Who gets to decide how elections are conducted? Due to an inability to agree at the Philadelphia Convention, there was a compromise. The voters in each state were to be the same as for "the most numerous branch of the state legislature" in each state. Citizens with property, without property, both black and white and in New Jersey, women as well voted in the first American election in 1789.
This constitutionally mandated variety in state election laws is why today, the Supreme Court has ruled constitutional that some states require photo IDs in order to vote. It also explains why some states bar convicted felons from voting, with differing requirements to end that prohibition.
It is also why, in various states, a candidate must face the voters between one and three times to be elected to the Senate (it depends on how primaries are conducted, and whether run-offs are required). Accepting recall as part of any state's election laws would add the possibility of one more election, on rare occasions, which the candidates would know about before filing to run.
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