These recalls are unprecedented

The right to recall an elected state official has been enshrined in Wisconsin’s constitution since 1926. Protecting this right was included as part of the progressive platform in the early 1900s to bring direct democracy to voters – along with referenda, direct primary elections, and women’s suffrage.

As of April 1, there were 19 recall committees actively collecting signatures across the state of Wisconsin in an attempt to recall 16 state Senators: eight Democrats and eight Republicans. At no time – ever – have so many state legislators been subject to simultaneous recall efforts. In fact, there have been only three times in U.S. history when multiple state legislators were the focus of recall efforts at the same time.

The current recall effort in Wisconsin, though constitutionally protected, is unprecedented both in size and scope.  

Successful recall efforts are rare

The circulation of a recall petition does not guarantee the incumbent officeholder will face a recall election. Despite numerous attempts across the country to recall state officials, only 20 state legislators have faced a recall election since Oregon adopted the first recall legislation in 1908; 13 of the legislators were recalled and seven survived.

State executives have also faired well against recall efforts. In 1921, North Dakota voters successfully recalled the state’s governor, attorney general and the commissioner of agriculture.

The recall of California Governor Gray Davis in 2003 is the only other successful recall of a state’s governor. (Although Arizona voters succeeded in placing a recall election on the ballot against the incumbent governor in 1988, the state’s House of Representatives impeached the governor before the scheduled recall election.)

Wisconsin voters amended the state Constitution in 1926 to allow for the recall of state officials.

Since 1926, however, only four Wisconsin legislators have been subjected to a recall election:

Wisconsin’s first recall election of a state legislator was held in 1932 when state Sen. Otto Mueller (R-Wausau) “refused to obey (then-Governor) LaFollette orders.” Sen. Mueller survived the recall election.

In 1990, then-state Rep. Jim Holperin (D-Eagle River) survived a recall election over his vote on tribal spearfishing rights in northern Wisconsin. Now a state senator, Holperin is the target of one of the current recall efforts.

In 1996, state Sen. George Petak (R-Racine) was Wisconsin’s first state official to be recalled. Petak’s vote to extend the tax for the Milwaukee Brewers’ stadium to Racine County was the impetus for the recall.

State Sen. Gary George (D-Milwaukee) was recalled in 2003 as a result of an anti-casino gambling vote and his indictment on federal charges that he was part of a kick-back scheme.

Wisconsin voters also witnessed another unprecedented, albeit unsuccessful, attempt to recall U.S. Senator Joseph McCarthy in 1954.

 

Wisconsin’s evolving recall law

The Wisconsin Statutes codify the constitutional provision and establish detailed requirements regulating a recall effort. The Wisconsin Government Accountability Board (GAB), the agency responsible for regulating Wisconsin elections, has added further detail to the requirements through its published materials, board decisions and staff interpretations.

 

The petition phase

The current 19 petitions target 16 state Senators who were elected in 2008. No other elected state officials could be the subject of a recall effort at this time, as a recall petition may only be filed against an incumbent who has served one full year of his or her term. Recall petitioners must collect signatures from at least 25 percent of the number of votes cast for governor in the last election in that district.

The current recall committees must collect between 11,817 and 20,973 valid signatures.  Petitioners must collect these signatures within 60 days. Committees may file petitions prior to the 60-day deadline, although once a petition is filed, no signatures may be added to it.

The 19 recall committees filed with the GAB between February 22 and March 5, 2011. The 60-day circulation period expires on April 25, 2011. One recall committee filed its signatures on April 1, 2011, approximately one month prior to the committee’s filing deadline. The remaining recall committees must file sufficient signatures prior to the expiration of the 60-day period.

Multiple recall committees may circulate petitions targeting the same incumbent. These recall committees may work independently or may work together to collect signatures. The statutes only require that the petition and signatures are filed within 60 days of one of the recall committees filing, and that no signature may be obtained earlier than 60 days before the filing of the petition and signatures. Accordingly, although only one petition may be filed with the GAB, multiple recall committees may combine the signatures that each committee obtained independently for purposes of meeting the signature number requirement when that petition is filed.

Challenge and verification

Once a recall petition has been filed, up to 31 days is set aside for the incumbent to challenge (10 days), the recall petitioner to defend (five days), for the incumbent to reply (two days) and for the GAB. to verify the petition and signatures (14 days). The Constitution requires the GAB set the recall election date for the Tuesday of the sixth week after the date of certification.

Based on the constitutional and statutory parameters, and based on the April 1, 2011, filing date by one of the recall committees, the earliest date a recall election may be set is June 14, 2011.  The challenge and review deadlines, however, may be extended by a circuit court upon a showing of good cause. During the 1996 and 2003 recall efforts, for example, parties were granted nearly double the amount of time for review. Given the number of recall petitions currently being circulated, GAB officials expect to ask the courts to extend the review period.

In addition, once the GAB makes a determination on certification, a recall committee, and the incumbent who is the subject of a recall effort, has up to seven days to file a lawsuit challenging the GAB’s decision. Any such legal challenge could move any recall election into the fall season.

The recall election

A partisan recall election places the incumbent against any challenger who qualifies as a candidate for that office.

The incumbent is automatically a candidate in the recall election and need not file nomination papers. Any person wishing to challenge the incumbent has two weeks from the date of GAB’s certification to gather the necessary signatures to qualify for the ballot (at least 400 signatures is required to qualify to run as a state Senate candidate).

If more than one person from a political party qualifies for the ballot (including from within the incumbent’s own party), the original dates set for the recall election are used for a primary election, and the general election is held four weeks later.

The winner of the recall election serves the remainder of the incumbent’s term. If an incumbent survives a recall election, no further recall petitions may be filed against him or her during the rest of that term.

 

Conclusion

As with the attempted recall of U.S. Sen. McCarthy in 1954, Wisconsin is once again involved in an unprecedented attempt to implement the state’s recall provisions. Whether any of the 16 state senators ultimately face a recall election, the mere attempt is extraordinary.

Rebecca Mason is a litigation attorney at Godfrey & Kahn S.C., Milwaukee. She practices political and constitutional law.

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