I saw threats of Colorado recall elections on social media before a single bill from the 2019 session passed, and they weren’t even naming specific legislators. Please ponder that for a second, and when the second of deep thought is over, it ought to seem obvious that recalls were a predetermined part of right-wing strategy. Recalls are legal and it looks like we’ll have to deal with them in 2019, but I cannot believe it’s beneficial to go through this divisive and disruptive process on a regular basis.
So, here’s my rhetorical question to frame a couple choices we might have looking forward – would you rather reserve the extraordinary act of recalling duly elected officials for extraordinary circumstances, or would you rather see the recall used as a blunt tool of partisan political proxy warfare? Unfortunately, we’re about to see the latter in 2019.
The 2019 legislative session is now barely three months old, and early-stage discussions are already underway about recalling at least four legislators with talk of more to come. I truly hope these efforts get defeated and the practice gets discredited. My primary problem is that attempting to recall state legislators who are serving in good faith, without malfeasance, is harmful to the main framework of our republican system of government.
Please note the small “r” in “republican system” above, since I don’t mean Republican as in the political party. I am registered with the capital-d Democratic Party, but fully understand we have components of a small-r republican form of government. In both Colorado and the U.S.A. we elect officials, in most cases through small-d democratic popular vote elections, and the officials then legally do all kinds of things that do not require another vote of the people. This includes passing budgets, enacting laws or executive orders, and hiring or firing directors and staff who implement policy. It’s generally a good system, since we normally elect qualified people who are capable of research and reasoned decision-making, and our systems can operate with some continuity – without the expense and interruption of having a new election at every flash point.
Colorado’s state system is at least loosely based on the U.S. system. Like the federal system, our capital-r Representatives are elected for two-year terms. The relatively short terms give the people a frequent opportunity to weigh in on the performance of their Representatives, who can be re-elected or voted out of office individually – or the prevailing will of a society can produce broader results such as a “wave election” that flips political dominance in entire chambers. Senators are elected for longer terms – four years at the state level, six at the federal level. According to Founding Father and Federalist Papers co-author James Madison, and I’ll say he’s a pretty good source, the longer senatorial terms would control turnover in the legislature, allow senators to take responsibility for measures over time, and make senators largely independent of public opinion (paraphrased, with wording from senate.gov).
Madison even had something to say about longevity when he wrote about his support for a two-year term for Representatives, as opposed to shorter terms, in Federalist 53: “No man can be a competent legislator who does not add to an upright intention and a sound judgment a certain degree of knowledge of the subjects on which he is to legislate. A part of this knowledge may be acquired by means of information which lie within the compass of men in private as well as public stations. Another part can only be attained, or at least thoroughly attained, by actual experience in the station which requires the use of it. The period of service, ought, therefore, in all such cases, to bear some proportion to the extent of practical knowledge requisite to the due performance of the service.”
Yet today in Colorado, people are talking about recalling certain legislators who have barely finished their third month in their respective offices, and we have no idea who would replace them if the recall was successful. This is why I believe holding recall elections at irregular intervals simply over legitimate policy disrupts the fundamental framework of our republican system, since Representatives will be up for a new re-election – or a cold booting out of office – in a relatively short time after any policy action, while Senators are literally meant to stay in office for an extended period.
However, I’m not saying we should eliminate the recall, or that it can’t have structural merit. During the 2013 recalls in Colorado, a Second Judicial District judge stated that recalls are part of our republican system of government, but I’ll maintain that it’s a tiny part because over time the recall has only accounted for an infinitesimal portion of what actually happens on a decade-to-decade basis. Legislators in Colorado have deliberated on hundreds of bills per year every year since I’ve been alive, while recalls are proposed only occasionally – in fact, the 2013 Colorado recall efforts led to the only legislator recalls in state history, and Colorado has been a state since 1876. Yes, the recall can be a “check” in a system of checks and balance, and it can be beneficial if used with some sense of altruism to rid a governing body of truly bad actors. Still, the recall election is not a part of every republican system of government, and there are different recall structures and standards in other states compared to Colorado’s structure.
Removal From Office: High Bars and Low Bars
At the federal level, there are no public recall elections for legislators, and the federal system is considered a republican form of government. Instead, there are the options of internal expulsion and impeachment, and many of us are familiar with impeachment for Presidential indiscretions but not for members of Congress. And that’s probably because through all of U.S. history, only one member of the House or Senate has gone through impeachment hearings – Sen. William Blount in 1797, for conspiring to assist Britain in capturing Spanish-controlled territory. That’s certainly not a policy vote in the same vein as, say, voting to strip health care coverage from 20 million Americans. Since then, federal impeachment proceedings have only been launched against judges and Presidents, and only eight of the 19 officers accused were removed from office as a result of the hearings – though five either resigned or were removed through other processes.
Impeachment is rare, and that’s largely because the Constitutional standard for impeachment is to be accused of “treason, bribery, and other high crimes and misdemeanors.” Some of us misunderstand the word “impeachment” to mean “removal from office,” but let’s remember it only refers to the passage of articles of impeachment in the House. To be impeached AND removed from office, the House must pass articles of impeachment and the Senate must find for removal in a high-profile trial. Plus, since supermajority approval is required in the Senate, it’s very difficult for a purely partisan impeachment trial to succeed. This is a pretty high bar.
In Colorado, our bar for initiating a recall election is quite low. In fact, all political opponents basically need to do is write and file a 200-word description of the recall’s purpose called a “statement of grounds” – and this statement is not open for review – plus gather valid petition signatures equal to 25 percent of the votes cast for all candidates for the seat in question in the last election. Then, the actual election could be held between 30 and 60 days after a final determination of the petition’s sufficiency.
At least eight states do require some type of malfeasance or incompetence for recalls. For example, here is Georgia’s standard: “Act of malfeasance or misconduct while in office; violation of oath of office; failure to perform duties prescribed by law; willfully misused, converted, or misappropriated, without authority, public property or public funds entrusted to or associated with the elective office to which the official has been elected or appointed. Discretionary performance of a lawful act or a prescribed duty shall not constitute a ground for recall of an elected public official.” There’s a section in this NCSL page about the other seven states, and you can pretty obviously count me in as someone who would love to see Colorado consider updating its recall standards and procedures.
Reminiscing with Great Fondness on Recent Colorado Recall History
The last Colorado legislative-level recall elections were in 2013, after Democrats reacted to the Aurora massacre of innocent people in a dark movie theater and the Sandy Hook massacre of young schoolchildren by passing a few bills that were, in retrospect, just not that extreme – though I’m fully aware that people will disagree. One bill expanded background checks to include all sales and transfers of firearms, and background checks for many types of purchases were already required in Colorado. The second created an ammunition magazine capacity limit, passed in the wake of an Aurora shooting in which the shooter carried a rifle into the theater equipped with a 100-round drum magazine.
Throughout time, lawmakers have responded to incidents that led to injury or public health hazards or tragedy with legislation geared toward limiting risk or preventing a repeat performance – think blood alcohol content limits to reduce dangerous impaired driving, or limits on purchasing boxes of Sudafed to make it tougher to manufacture meth in your garage. But this time, the laws were about guns and ammo, and two Democratic senators who voted for the bills were recalled while a third resigned before the recall election happened.
My point here is not to argue about guns. I’ve shot them, beginning in the 1970s, enjoyed it, and understand that people might feel legitimate needs to own them for self-defense. My main point is that the recalls happened over policy, not anything approaching the level of high crimes and misdemeanors. Six years in, none of the 2013 gun laws have been found unconstitutional (see endnote for new info), while the court system can and does strike down unconstitutional laws. I’ll maintain that going to court over constitutionality is vastly preferable to a recall – if constitutionality and not political dominance is actually the concern. The courts may take months or even years to determine a law’s constitutionality since it can take very careful deliberation, but they’ll come up with an opinion based on heavy research that will be on record for people to analyze or cite, plus certain rulings can be appealed.
Meanwhile, a recall election might take place less than 60 days after the petition’s found to be sufficient – with no serious deliberation required, while the “verdict” of a simple majority vote, no matter the turnout, is binding.
Of course, there is no requirement for a recall petition to resemble a court ruling. In 2013, the recall statements of grounds included numerous phrases saying the legislators were operating contrary to the Second Amendment or constitutional liberties, despite absolutely zero evidence that the bills contained Second Amendment or constitutional violations. Current state statute says statements of grounds shall not contain “profane or false” language, and I have a tough time reading (and re-reading) the statement of grounds linked above without seeing falsehood in some very heavy accusations. I feel confident that recall proponents gave the people misleading information, at the bare minimum.
In fairness, I’ll add a paragraph about the 2015 Jefferson County School Board recalls, designed to remove three conservative Board members from office. In my opinion, the proponents’ reasons for recall were more specific and voluminous than the 2013 statements of grounds against the state legislators. However, the Jefferson reasons for recall included an accusation that the Board members violated Colorado open meetings laws, so a Board member took the unusual step of filing an ethics complaint against himself with the Colorado Independent Ethics Commission in an effort to obtain an advisory opinion as to whether laws were actually violated. He didn’t get his advisory opinion, but the three members were never formally found guilty of open meeting law violations either – and this portion of the reasons for recall went public without hard evidence or retraction. All three Board members were recalled, certainly not for the open meeting law accusations alone, but I’ll maintain that it’s unfair to allow unproven legalistic statements to be part of official documents like statements of grounds or reasons for recall, whether anyone likes the candidates in question or not.
So, here’s a passage from Colorado’s current Constitutional standard for statements of grounds – “…the registered electors shall be the sole and exclusive judges of the legality, reasonableness and sufficiency of such ground…” This is too much like “We report, you decide” on an issue of very high consequence for my tastes, in an era in which fact-checking before publishing is completely possible – and I would add “desirable” when it comes to issues of legality or constitutionality. I think this ultra-loose standard is worthy of reconsideration, and in the meantime, I hope the media will do a high-quality job of fact-checking the statements of grounds in 2019 and that people in recall districts will take note if statements fail the truth test.
Reasons to Revise or Reconsider Recall Rules
Unusual Election Dates: Generally, people accept that they’ll have a November election every year and primaries every two years, but “Election Day” for the 2013 recalls was September 10. In September, students are just getting settled in, families are getting back to work after summer vacations, and most people simply don’t associate September with election season. That’s part of why turnout in 2013 was far below typical general election numbers, though there were added factors including election timeline problems that prevented the use of mail ballots in our mail ballot state – and a spokesperson for the recall effort was even quoted in this AP story as saying the lack of mail ballots was advantageous for the pro-recall side. The legislature passed a bill after the fact to rectify the mail ballot situation, which was “too little, too late” for the legislators, but it reinforces that it’s possible to improve our process.
Poor September Turnout: In 2013, about 18,000 people voted in the Senate District 5 recall (about 21% of registered voters in the district), while about 28,000 voted in District 5’s previous general election – a 36% decrease between the general and the recall. About 35,000 voted in Senate District 3 (about 36% of registered voters), while about 45,000 voted in District 3’s previous general election – a 22% decrease. “The people” elected these senators to full senatorial terms in general elections, while the recalls fell far short of full turnout. Voter turnout also tends to be higher in regularly-scheduled general elections because there are multiple candidates and ballot measures, most of them advertising or generating media interest, increasing the likelihood that a registered voter will decide to participate. It’s no wonder that turnout is likely to be smaller in a single-issue recall on an odd date.
Legit Turnout in November: In 2015, three Jefferson County School Board members were recalled, but turnout for this recall was much higher than turnout for their initial 2013 elections. This recall effort was highly publicized and big partisan proxy war money was out in full force, but hey – it was also held as part of that year’s Jefferson County coordinated election, with Election Day being November 3. Voters received ballots in the mail, plenty of other races were on the ballot, and the strong turnout produced a much more legitimate expression of an entire district’s intentions than the partial turnout in the 2013 senatorial recalls.
Who’s the Replacement?: With 30 to 60 days to run a recall election, voters don’t have the same amount of time to vet or fully understand the replacement candidates as they would in a general election. In a normal House or Senate campaign, candidates often announce their candidacy a year in advance, giving them a chance to meet constituents, face the press, and debate their opponent(s) over an extended period of time. In a recall, the media and public discourse spotlight shines very brightly on the official up for recall, and the possible replacement may be little more than an afterthought.
Policy Cracks the Door Open, Demographics Decide: Three Senators were targeted for recall in 2013, while about 50 other legislators voted for the exact same bills. This strongly indicates that recalls can be as much about rolling the dice on flipping seats or flipping legislative chambers, based on having some chance of success, as they are about a controversial vote. In other words, they can be used as a tool of partisan politics, hidden beneath a veneer of policy. Legislators in the deepest blue or red districts are quite unlikely to face recalls, even if they have more strongly held positions on the same issues than legislators with more evenly-divided constituencies, since the time and effort won’t produce a political victory. In fact, safe-seat legislators can and do sponsor or vote for bills that are far outside the mainstream, potentially even reprehensible to parts of the public, with no fear of recall because they won their last elections in landslides.
Is Recall a Fair Consequence for a Few Votes?: In Colorado, the General Assembly currently typically produces 600-700 bills per year. As I wrote earlier, in our republican system we elect officials to make these hundreds of decisions, and there is no way any legislator can or should satisfy everybody. And those who won close elections may find themselves in the quandary of needing to decide whether to support legislation favored by the majority who elected them, or oppose it based on the threat of recall efforts from the minority who didn’t support them in the first place. Colorado also has the initiative and referendum petition options to put policy issues on the ballot if officials can’t or won’t do what petitioners desire. Single-issue or even limited-issue recalls ignore a legislator’s competence and extended history of voting in the peoples’ interest, and potentially bypass the initiative process that can actually produce a policy victory if this policy is really what the people want.
Disruptive to Governance: Legislators have demanding duties, and a recall effort puts an extra heavy load on their already creaky backs. The legislators facing recall might even learn about a recall effort during a legislative session (recall efforts can legally begin a mere five days after the session starts), while they’re trying to cope with hundreds of bills, the budget process, constituent and media requests, and having some semblance of a family life. Then, they’ll need to assemble a campaign team and raise resources, possibly shortly after the last election cycle and before they expected to need fundraising and a campaign structure once again. This is just not helpful for good across-the-board governance, since the public interest demands that legislators have full focus on the myriad issues they face.
Public and Private Expense: There is measurable public expense involved in operating the recall election – with the costs of notifying the public about the election, printing ballots, opening and staffing polling locations, and tabulating ballots among them. Also, politically involved citizens will be hit up once again for donations and volunteer-hours, whether it’s to fight against well-funded non-local interest groups or not. In my opinion, it’s time and money not well spent.
Beyond Recalls: A Quest for Political Renaissance
For a society to function at its best, “we, the people” have some personal responsibility to ensure thoughtful deliberation guides our most important actions. In my opinion, electors should apply critical thinking before signing recall petitions in the first place, and that goes double for the serious action of voting to recall a duly elected officer in the second place. We should ask ourselves if a recall is being proposed out of altruism, a sense of creating a better state in the long run – or if it’s vexatious (designed to harass or annoy), or at its worst a nakedly partisan power grab. I believe people can work for change in a much more high-minded manner than the hasty, polarized process of state-level recall in Colorado.
In conclusion, I hope in 2019 that more people will learn to see past the pitchforks when recalls are being threatened or used as a partisan tool. Once again, despite all I’ve written, I’m not necessarily calling for an end to recalls, but instead for a type of “legal but rarified” approach including stronger standards in the state’s recall process, and better public awareness that might lead folks to “decline to sign” petitions or oppose recalls if they’re not for actual malfeasance or incompetence. Since during this decade three Democratic Senators and three conservative School Board members fell due to recall efforts, I’d love to just say “let’s call it even” and move past recalls to the higher-minded policy discussions we really need to build a better society.
Endnote: As I was finishing this piece, I learned of news that a U.S. District Court judge from California ruled that California’s Penal Code Section 32310, regarding its prohibitions on ammunition magazines with capacities of more than 10 rounds, was unconstitutional. I did not choose to insert this into the main body of my piece for a few reasons. First, it doesn’t change that Colorado’s 2013 laws have not been found unconstitutional, and it doesn’t change my belief that recall organizers should not be able to use unproven legal/constitutional accusations in official documents. Second, a number of court cases have found various magazine limit laws constitutional. Third, Colorado’s 15-round magazine limit is larger than California’s, and Colorado’s law “grandfathered in” possession of larger-capacity magazines that were owned before the 2013 law passed. Fourth, the California case will be appealed, so there’s no finality in this ruling. I will follow the progress of this case and others.