NJ Law Journal Editorial Bd: NJ Senatorial Recall Vote Unconstitutional

No Call for Recall

New Jersey Law Journal  (c) ALM Media Properties, LLC

December 3, 2010

by the Editorial Board

It is a sign of our unsettled times that matters long settled have been questioned. Post-Civil-War amendments like the 14th, guaranteeing citizenship to all persons born or naturalized here, are challenged by critics of immigration policy. The governor of Texas cites the 16th Amendment and the income tax as the beginning of the federal government's unwarranted rise. The 17th Amendment is attacked by activists who find the six-year term for U.S. senators intolerable.

The Committee to Recall Robert Menendez from the Office of U.S. Senator tried to shorten his term, relying on a 1993 popular referendum that added Art. 1, para. 2 to the New Jersey Constitution. It authorizes recall of both state and federal elected officials and requires that "a recall election be held upon the petition of at least 25 [percent] of the voters in the electoral district of the official sought to be recalled."

Sen. Menendez challenged the recall law, leading to the state Supreme Court's Nov. 18 ruling, in Committee to Recall Menendez v. Wells, __ N.J. __, that the 17th Amendment does not permit a state to recall a federal office holder. Chief Justice Stuart Rabner, writing for a 4-2 majority, said that "when the law giving rise to an election 'is defective on its face,' there is 'good reason' to review the law's validity before voting." The Court found the hardships of defense of one's office in the face of an impermissible challenge to be of great enough weight to justify granting review of Menendez's facial constitutional challenge.

No one has ever cast a vote to recall a U.S. senator, so there was no direct precedent. The Appellate Division saw possible constitutional ambiguity — citing Justice Clarence Thomas's dissent in U.S. Term Limits, Inc. v. Thornton , 514 U.S. 779 (1995) — that "silence in the federal Constitution may" permit recall. Since it could not "safely predict what the U.S. Supreme Court would do if presented with the question," the panel deferred. The New Jersey Supreme Court has now met the question head-on.

After careful review of the legislative history the majority found the answer clear:

"The historical record leads to but one conclusion: the Framers rejected a recall provision and denied the states the power to recall U.S. Senators. That finding is consistent with the views of nine Supreme Court Justices who made those same observations, in dicta, in U.S. Term Limits, Inc. v. Thornton ... even as they divided 5-4 over the primary issue in that case."

"Renewed debates around the time of the enactment of the Seventeenth Amendment offer yet more support for that view. In addition, contemporary legal scholars have uniformly reached the same conclusion about recall, despite their differing policy views on the subject."

Finding that a court "ought not compel the doing of a vain thing and the useless spending of public money," the majority ended the recall process. It properly recognized that the federal and state constitutions express different judgments about how much direct democracy is warranted.

The analogy to the federal bar on state term limits for members of Congress is a close one. In Thornton, the U.S. Supreme Court held that a state congressional term-limits measure is unconstitutional when it has the likely effect of handicapping a class of candidates and has the sole purpose of indirectly creating qualifications beyond those in the federal constitution.

We think the majority was correct in recognizing the Madisonian republican view of the constitution as an obstacle to implementation of popular factional passions. We therefore find overwrought the joint dissent of Justices Roberto Rivera-Soto and Helen Hoens, which declares, in a paean to "popular sovereignty," that the majority wrongly sees the U.S. Senate as "an elitist institution the members of which should not have to be troubled by what the people they represent believe, save for the necessity of having to return and convince the people to vote them back into office every six years."

But that is in fact what the Madisonians designed — and what the 17th Amendment left intact — save for direct election. That insularity earned the U.S. Senate its reputation as the world's greatest deliberative body. It is often a frustrating body, but we cannot agree with the dissenters that the majority's ruling is one that "silenc(es) voices of protest," nor that it is a "sad and dark day in the history of the Court," nor that the majority has worked an "unconstitutional disenfranchisement of New Jersey's citizens."

Such hyperbole does not enlighten. No one in any state has ever cast a vote to recall a U.S. Senator. The security of a senator's ability to deliberate and to represent the entire nation has been constitutionally assured by the six-year term. Contrary to the dissenters, we do not believe such security of office is "illogical and offensive." It is instead an element of the genius of the republican form of government that the constitution guarantees to the citizens of every state.

ACRU sponsors recallnow.org which says the "constitution has protected our freedom and liberty for two centuries by providing us with a representative government, a Congress—one accountable to its citizens. Until now."

This editorial was published in the December 3, 2010 issue of the New Jersey Law Journal.  Copyright 2010. ALM Media Properties, LLC. All rights reserved.  Further duplication without permission is prohibited.