The Case Against Recall Elections - 03/10/06
Recall: A right or procedure by which a public official may be removed from office before the end of his term of office by a vote of the people to be taken on the filing of a petition signed by the required number of qualified voters.
A way for voters to remove an elected official before the end of his term for cause seems like a good idea. If it were a politically neutral process, it might be. The problem is that it hardly ever is and it is nearly impossible to safeguard against abuse.
Take the case of "Roxie Grubbs." Ms. Grubbs and John Meredith were once close friends. Roxie was elected commissioner in her city and Meredith is a resident of her district. Jilted and hurt, Meredith now despises Roxie. In conversation and in his many e-mails, Meredith often refers to Roxie as Commissioner No-Nuts. In fact, he hates Roxie so much that Meredith and some friends start a recall movement against her. They charge Roxie with drunkenness and malfeasance. Meredith has no evidence to substantiate the charges. Fact is, Roxie does not consume alcohol and he knows that. Meredith is also advised by his lawyer that drunkenness, even if true, is not malfeasance. In her response to the petition, Roxie denies she is a drunk. No matter, the recall committee moves forward with the recall petition and does everything by the book. Finally, the chief judge, finding no defect in the petition process, sets an election date for the recall. In the recall campaign, Meredith asserts that all drunks deny they are drunks. Roxie's denial, therefore, proves she is a drunk. Moreover, a poll conducted by a newspaper finds that 72 percent of voters think that malfeasance is an intestinal disorder that could be caused by excessive drinking.
In this case -- purely fictional -- the recall is based on a fraudulent claim used to advance a private interest. Should it be allowed to succeed? Some will argue that the voters are smart enough to know the difference between the truth and a frivolous claim such as that advanced by John Meredith. The other side of this asks how the voters determine the truth. Drunkenness is a valid grounds for recall of local officials in Florida, and some voters who oppose Roxie's politics will find Meredith's argument compelling and a way to rationalize their vote.
The idea of recall of public officials has been around since a similar process was instituted in ancient Athens to remove members of the ruling council. It is from this method that the modern word ostracize is derived. Its use in this country, however, was not common until the early 20th century. Even since, the process is used sparingly compared to other direct citizen actions, such as initiative and referendum. An authority on recall estimates that around 4-5,000 recall elections have been held in the United States since 1903 and probably as many as 2,000 city and county officials have been recalled. 1
In Florida, since the state legislature adopted uniform rules applicable to all municipal recall elections, the case law is sparse and mostly relates to technical matters, such as the adequacy of recall petitions. The key Florida case is Garvin v. Jerome, a state Supreme Court decision, which stopped a recall election six years ago where the stated grounds for recall were legally insufficient. 2
State law does not provide the constitutional basis for recall. Recall of public officials must be authorized by the county charter or municipality, as in Deerfield Beach, but the process, wherever authorized, must conform to the procedures and rules set forth in the state statute (Fla. Stat. § 100.361). This statute prescribes a procedure for initiating a recall election which involves a two-stage petition process. After the petitions in the second stage are authenticated by the supervisor of elections, the chief judge of the circuit court sets an election date.
It is not specified in the statute, but it is an additional fact, that the official targeted by the recall may sue to stop the recall election and this is certain to happen whenever any important office is in question. He may file for declaratory or injunctive relief. He may sue before the petition process is completed, but strategically it is to his advantage to wait until the petitions are sent to the circuit judge.
The state law also provides that the recall petition must be based on one or more of seven specific grounds named in the statute. Suppose, however, that the petition enumerates several grounds for recall and one or more of these grounds are invalid, while the remainder are legally sufficient? This was the issue in the Garvin case. Prior to Garvin, lower courts had gone in opposite directions on this issue. The Garvin court sided with an earlier lower court decision which stopped a recall election on a petition containing invalid recall grounds. The Court reasoned that even if the offending allegations were removed from the ballot, the invalid grounds had influenced the electors signing the petitions to sign. There was no way to know if the persons signing the petitions would have done so if they had known the grounds to be legally insufficient or were misled by the false charges. Therefore, the petitions must be held invalid in their entirety.
"As the statutory scheme for recall elections presently stands," the Court's decision reads, "it is apparent that recall is treated as an extraordinary proceeding with the burden on those seeking to overturn the regular elective process to base the petition upon lawful grounds or face the invalidation of the proceedings. In our view, the present legislative scheme protects public officials from being ousted when illegal grounds provide the basis for recall. Since we place enormous value on the regular elective process, this legislative scheme is certainly not unreasonable. Accordingly, public officials should not face removal from the office they were lawfully and properly elected to on a ballot that contains illegal grounds for recall in express violation of the statute."
The city charter of Deerfield Beach (Charter § 7.01) authorizes recall but provides no parameters except that the election shall be held in accordance with state law. In isolation, recall could be on any whim. Ours is, theoretically however, a civil government, and even the most avid supporters of the recall process agree that it must not be used uncivilly or frivolously, otherwise to undermine the legitimate and necessary operations of government.
The state statute, in fact, is intended to prevent frivolous or wrongful use of recall, as the Supreme Court wrote, but it is not clear on its face how it does this. It does not provide any institutional means to prevent abuse. As a practical matter, then, the targeted official must rely on the good sense of the voters. Fortunately for officials, they can also seek equitable relief from the courts, which are disposed to give it, as we saw in the Garvin case.
For recallers, the history of recall and the low success rates are not encouraging facts either. They run the risk of backfire and backlash if the case against the targeted official is not substantial. If in the case of Mr. Gonot, for example, the recall petition were to be rejected by a credible margin of voters, it would validate his actions as a public official. This, presumably, is the opposite of the result that the recallers hope to achieve. In this instance a failed recall could also hurt Mr. Deetjen's chances of retaining his position of city manager, if it is perceived that a wasteful and disruptive election was engineered by a cult of Deetjen supporters, or by Deetjen himself, to remove a critic from the governing council. Success of such a strategy would set a dangerous precedent in Deerfield politics. Deetjen's involvement in the recall election is bound to be an issue.
The state Supreme Court is certainly correct that recall is "an extraordinary proceeding" and that the burden falls "on those seeking to overturn the regular elective process to base the petition upon lawful grounds."
Why, then, have recall? It is disruptive and divisive if politically motivated. It is costly to the city to hold a special election. It is costly to the targeted official who must pay attorneys and finance another campaign. It may unjustly damage the reputation of a public official. It is, as the fictional case of Roxie Grubbs suggests, potentially fraudulent; and it may be difficult to hold recallers who start frivolous recall campaigns accountable or liable for the damage they inflict.
Professor Thomas E. Cronin, author of Direct Democracy: The Politics of Initiative, Referendum, and Recall favors recall, but acknowledges that it is "crude" and "its use should be restricted to true emergencies." He suggests that recall should be encouraged "only in those serious situations when a public official has been inexcusably negligent or has become incompetent." 3
Cronin also outlines several measures to safeguard the integrity of the process. However, in Florida, where the state statute preempts local law on the subject of recall for the most part, reform must be at the state level. The only reform possible at the city level would be to repeal the recall provision.
While the city charter authorizes recall of public officials, Deerfield Beach inconsistently has no code of ethics or standards of behavior, no instructional program, no inside way to adjudicate dishonesty or questionable behavior on the part of public officials, and little propensity for broad ethics reform. If the Gonot recall fails, this could galvanize public opinion against the use and misuse of recall. It might be the right time to offer repeal of the recall charter to the city's voters, while at the same time opening the door for ethics reform which would be a better objective.
If recall were a politically neutral process and perfectly without the potential of misuse by disgruntled citizens with an ax to grind, it would be one thing. But it isn't and there is no way to make it so. Elections are inherently political and lesser motives are always part of the political process. Recall should not be part of the governing process. Ethics reform, on the other hand, should be part of it. It is submitted that the work of drafting rules of right behavior for all public officials would be infinitely more constructive than abusive, politically motivated recalls of elected public officials accused of unethical behavior. It might lead us closer to excellence in the way this city is governed and away from the morass we have now.
1 Cronin, Direct Democracy: The Politics of Initiative, Referendum, and Recall, Harvard University Press, 1999, pp. 125-156.
2 Garvin v. Jerome, 767 So.2d 1190 (2000).
3 Cronin, p. 144.