News & Commentary

A Tea Party Fight Liberals Could Get Behind?

(7/30/10)— New video on NationalJournal.com: "A Tea Party Fight Liberals Could Get Behind? Liberal Groups Could Benefit If Conservative Activists Win The Ability To Recall Members Of Congress." This video is part of National Journal's effort to document the recall efforts. Click here to view the video.

Complaint Filed in North Dakota Supreme Court to Allow Recall of U.S. Senator Kent Conrad

(7/20/10)— On July 14, North Dakota joined New Jersey in an effort to recall a U.S. Senator.

RecallND filed a complaint with the North Dakota Supreme Court claiming that the state’s Secretary of State has unconstitutionally blocked a petition to recall U.S. Senator Kent Conrad (D-ND).

The complaint indicates that on May 13 North Dakota Attorney General Wayne Stenehjem published an opinion concluding that the North Dakota State Constitution does not allow for the recall of a U.S. Senator. On the same day, the office of the North Dakota Secretary of State claimed to have no authority to approve the circulation of RecallND’s recall petition.

Section 10 of Article III in the North Dakota constitution states, “Any elected official of the state, of any county or of any legislative or county commissioner district shall be subject to recall by petition of electors equal in number to twenty-five percent of those who voted at the preceding general election for the office of governor in the state, county, or district in which the official is to be recalled.”

RecallND, a not for profit citizens organization, claims that both the ND constitution and its legislative history “permits the recall of the state’s representatives in the United States Congress, as indicated by the plain meaning of the language.” The organization says in its complaint that the U.S. Constitution “does not preclude the recall of United States senators by the electorate of their respective states.” RecallND is requesting the North Dakota Supreme Court order the Secretary of State to approve the organization’s application for petition to recall Conrad.

RecallND is the second recall effort to reach a state Supreme Court. The New Jersey Supreme Court heard arguments in the effort to recall Senator Robert Menendez on May 25 and has yet to render a decision. The lower court ruled unanimously in favor of allowing the Menendez recall petition to go forward.

Click here to download the complaint. (PDF)

Effort to recall Menendez heard in state supreme court

(5/25/10)— “A 1787 letter from George Washington did not appear to trump other texts and events Tuesday as the state Supreme Court hit the history books while hearing arguments on a Tea Party-connected group’s effort to recall U.S. Sen. Robert Menendez. The NJ Supreme Court is set to hear today from New Jersey’s Sussex County Tea Party activists who want to recall Menendez for promoting health care reform and opposing limited government. In a case that is being watched in several states, the recall committee with ties to a Sussex County Tea Party group is seeking the removal of Menendez, D-NJ, whose term expires in 2012. The Committee to Recall Senator Menendez says the senator is a big spender, and it opposes his support of the recently passed health care reform law.” Click here for the full story from NorthJersey.com.

ACRU Files Brief Urging N.J. Supreme Court to Allow Menendez Recall Petitions

(5/10/10)— The American Civil Rights Union (ACRU) today filed a brief with the New Jersey Supreme Court urging the justices to affirm a state appellate court ruling ordering the Secretary of State to recognize a recall notice for U.S. Sen. Robert Menendez (D). If the court concurs, petitioners could begin immediately to collect the 1.3 million signatures needed within 320 days to put Menendez on the ballot. Menendez, who was elected in 2006, is not slated for re-election until 2012.

The brief, filed by ACRU General Counsel Peter Ferrara, makes it clear that the court is deciding only the validity of a lower court’s ruling that signature gathering is legal, not the constitutionality of the recall measure itself.

“The New Jersey Supreme Court must either affirm the ruling of the court below, or expressly overrule all the New Jersey precedents holding that courts will not address constitutional issues unless necessary to resolve a particular case,” Ferrara said. “Those precedents are recited at length in our brief.”

The ACRU had filed an amicus brief on Feb. 9 supporting The Committee to Recall Senator Robert Menendez, the group formed by NJ Tea Parties United and the Sussex County Tea Party. A previous Secretary of State under the Corzine Administration had ruled against the petition, triggering the court case.

The brief states:

“Nothing about the collection of signatures by the citizens of New Jersey on such petitions would violate the U.S. Constitution. Quite to the contrary, such petitioning is political activity protected by the U.S. Constitution, as a public expression of their views under the First Amendment, and as an exercise of their right to petition their government for redress of grievances under that same Amendment. That is all that this case presents to this court now.”

In 1993, New Jersey citizens voted 76.2% to 23.8% to approve the constitutional recall language.

“We’re hoping for a timely decision from this court,” said ACRU President and CEO Susan Carleson. “We’ve made the case over and over for the constitutionality of recall, but this is an even easier call to make—letting the people circulate petitions.”

Click here to download the brief. (PDF) Click here to download the supplemental brief. (PDF)

NJ AG declines to oppose Menendez recall committee before NJSC

(4/24/10)— “In a stunning development, the New Jersey Attorney General’s office said on Thursday that it will not support the petition for certification by Senator Robert Menendez (D-NJ), who is seeking to have the New Jersey Supreme Court quash an effort by a citizens’ committee to recall him from office, this Examiner has learned. In a letter addressed to the clerk of the Supreme Court, Assistant Attorney General Donna Kelly cited the opinion of the Appellate Division in the case of Committee to Recall Robert Menendez from the Office of United States Senator v. Nina M. Wells et al., stating that invalidating the recall provisions of the New Jersey constitution and authorizing statute would have ‘grave and momentous consequences.’ Kelly indicated the full agreement of the AG’s office with the Appellate Division’s applications of ‘principles of judicial restraint.’” Click here for the full story from Examiner.com.

ACRU Urges NJ Supreme Court to Deny Sen. Menedez Petition to Hear Recall Appeal

(4/21/10)— “Senator Robert Menendez (D-NJ) petitioned the New Jersey Supreme Court to hear his appeal from the ruling of a state appellate court that a citizens committee seeking a recall election to remove him from office could proceed to circulate petitions to collect the signatures required under the New Jersey Constitution to qualify for such an election. The American Civil Rights Union (ACRU) filed an amicus curiae brief on April 21, 2010 with the New Jersey Supreme Court urging it to deny the petition from Senator Menendez to hear the case on the grounds that the circulation of petitions and the collection of signatures is political activity and political expression protected by the First Amendment which consequently should be allowed to proceed.” Click here to download the brief. (PDF)

Senator Menendez Appeals Recall

(4/13/10)— “A brief was filed on April 12, 2010 in Senator Menendez’s behalf petitioning the New Jersey Supreme Court to hear arguments that the recall petition drive should be halted before it has begun. They claim that even though we have the right to elect the Senator, once elected, the People have no control over, nor right to change such a representative until the next election, six years later. Their argument, logically means that even if our Senator was completely incapacitated, and unable to represent our interests, we would have no right to replace him. That decision would lie in the hands of men such as Harry Reid. Clearly, the Founders did not have that situation in mind when they wrote the Constitution.” Click here to download the brief. (PDF)

Menendez Recall Case Likely Heading to U.S. Supreme Court

(4/06/10)— “This should be interesting: The state Supreme Court is being asked to rule whether the New Jersey Constitution is constitutional. Now there’s a case for the court to be deciding while Gov. Chris Christie is mulling appointing/reappointing four justices. The case comes courtesy of Sen. Robert Menendez, D-NJ, who is asking the court to say that any attempt to recall him is unconstitutional because it violates the U.S. Constitution. And, as a result, he’ll also be asking the court to decide whether the section of the New Jersey Constitution, which allows for the recall of all elected officials, is unconstitutional as well.” Click here for the full story from InTheLobby.net.

U.S. Sen. Menendez appeals recall ruling

(4/06/10)— “Calling it an ‘attack on the Constitution,’ a spokesman for U.S. Sen. Robert Menendez yesterday said the Democrat has appealed to the state Supreme Court to stop a recall effort. ‘Mainstream New Jerseyans believe deeply in the U.S. Constitution that for more than 200 years has made ours the greatest form of government in world history,’ said Afshin Mohamadi, a spokesman for Menendez (D-NJ). ‘This attack on the Constitution undermines our uniquely American system of democracy and will be contested.’” (Ackermann, The Record) Click here to read the full article from NorthJersey.com.

Stage Set for Recall Battle in North Dakota

ACRU Responds to North Dakota Secretary of State’s Denial of Citizens’ Effort to Recall Senator Kent Conrad (D-ND)

(4/06/10)—Bismarck, ND—North Dakota is one of ten states with broad language in its constitution to recall elected officials. Yet, in a letter dated 25 March, 2010, Alvin Jaeger, North Dakota’s Secretary of State, refused to provide the procedures by which a member of Congress could be recalled from the office they hold to a citizen of North Dakota. The ACRU contends that to deny this request is to deny the citizens of North Dakota their constitutional right of recall.

In response to this denial, Peter Ferrara, General Counsel for the American Civil Rights Union (ACRU), wrote to Secretary Jaeger stating:

“I note that the office of Secretary of State of North Dakota includes no power to issue constitutional rulings, whether regarding the Constitution of North Dakota or the United States Constitution. The Secretary of State is compelled solely to follow applicable North Dakota state law. The office has no power to cast words out of the North Dakota Constitution, or to declare any portion of its own state’s Constitution unconstitutional.

The North Dakota Constitution provides for the recall of “all elected officials.” Since Senator Kent Conrad is an elected official, the specified recall procedures in North Dakota law apply to any recall the people of North Dakota wish to pursue against him. The discretion in this matter lies solely with the people of North Dakota, and not with the office of Secretary of State.”

Secretary Jaeger’s actions sets the stage for a recall battle in North Dakota just as in New Jersey, where a State Appellate Court, in a March 16th unanimous ruling, paved the way for the first ever recall effort of a U.S. Senator. After being denied their constitutional right last September for permission to circulate a petition to recall Senator Menendez, The Committee to Recall Robert Menendez sued, taking their case to the New Jersey courts...and won. The ACRU was the only outside organization that filed an amicus brief with the Court supporting The Committee to Recall Senator Robert Menendez effort.

Grassroots groups across the country are exercising their constitutional right in demanding accountability from their elected officials. In addition to North Dakota and New Jersey, the states of Arizona, Colorado, Louisiana, Michigan, Montana, Oregon, Washington, and Wisconsin, have laws on their books providing for broad recall of elected officials. These ten states have a total of 13 incumbent Senators not currently up for re-election in 2010, but who could, through successful recall efforts, be on the ballot or face a special elections this year.

Is a State-Based Recall of a U.S. Senator Constitutional?

By John Armor

This article originally appeared on AmericanThinker.com on April 1, 2010.

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.

Another reason why the Thornton case does not dictate the result in this case is that the Tenth Amendment applies here, but did not apply there. Since Congress did not exist until the Constitution was written, there could not have been any “pre-existing right” to be preserved in the states. The right of recall was alive and well in states before the Constitution was written.

When the 17th Amendment was ratified and went into effect to make senators elected by the people rather than appointed by the state legislatures, it provided additional reasons to uphold recall where provided. This Amendment repeated, word for word, the language of the basic Constitution that the state voters would be those for “the most numerous branch of the state legislature.” It left to the states the definition of who could vote and how the elections would be conducted.

The other reason to believe that state-based recall is permitted is in the last clause of the 17th Amendment, which protected the terms and selections of all sitting senators at the time it was ratified. The sitting senators recognized that a version of the Amendment by a Constitutional Convention (about to become mandatory) could have put them all out on the street immediately, to be replaced by elected senators.

Finally, most of the states whose laws and constitutions allow recall of elected officials exclude recall of judicial officials. That is because many of the states that have elections involving judges separately provide for “recall” of judges through a “retention” election. But this has the same effect that the Mayflower Compact and the Declaration of Independence sought.

Retention elections occur at required intervals, usually ten years. The name of the judge is automatically placed on the ballot with the question, “Shall Judge Smith be retained in office?” If a majority of the voters vote in favor, Judge Smith is retained in office. But if a majority is dissatisfied and vote no, then the judge is immediately removed.

Recall of elected officials is a powerful remedy that is seldom used. This does not diminish its importance in those rare instances when the voters heartily disapprove of the conduct of an elected official after he or she has taken office and has a track record. Impeachment of presidents is a dire remedy that also has rarely been used. That is no argument that it should not exist.

The final reason why Thornton supports, rather than denies, the validity of recall for senators is the underlying reason for the Thornton decision. As the Court made clear, state-based term limits would inhibit the free exercise of the franchise by the citizens of Arkansas. In the case of New Jersey, or any other state with a similar provision on its books, the right of recall would advance, not inhibit, the exercise of the franchise in those states.

So the one case that many will claim is a barrier to state-based recall of U.S. senators is, instead, a strong support for recall. One learns the meaning and power of any other Supreme Court decision by digging down to the basics, to discover why the Court ruled as it did. In Thornton, the Court protected the right of the sovereign people to choose their own representatives. That is also the basis of the right of recall, and it has been so for more than three centuries.

ACRU continues defense of Menendez recall effort

(4/02/10) — “The American Civil Rights Union, which filed an amicus curiae brief in support of the appeal by the Committee to Recall Robert Menendez from the Office of United States Senator, today offered a new commentary explaining why the recall of a United States Senator by his State’s voters is constitutional and unaffected by the most-often-cited case law.

John Armor, a member of the ACRU’s legal team, offered this commentary in today’s American Thinker. In it he pointed out that the United States Supreme Court has never before heard a specific case involving the recall of a Member of Congress.”

Click here to read the full article from Examiner.com.

Toyotas Aren’t the Only Things Getting Recalled This Year

By John Armor

This article originally appeared on Townhall.com on March 17, 2010.

On Tuesday, the New Jersey Court of Appeals cleared the way for the recall of Sen. Robert Menendez (D-NJ) to proceed. New Jersey is one of nine states whose constitutions provide broad language with regard to recalling “all, every, any” elected official. This decision could severely endanger the 11 other sitting Senators (all Democrats) in those states, who are not up for re-election this year but could be subject to citizen recall efforts.

The American Civil Rights Union filed an amicus brief in this case, which landed in court when the former N.J. Secretary of State denied the approval of a recall petition by several Tea Party groups, declaring that its state constitution was unconstitutional.

The people of New Jersey, using the initiative process in their constitution, had guaranteed their “basic right” to recall all elected officials including U.S. Senators with a provision passed in 1993 by a 2-1 margin. The intent of the people was crystal clear. The court ruled that the recall of U.S. Senators was not “so clearly invalid” as to require “a judicial declaration thwarting the will of the voters.” The court stayed its order to the Secretary of State to approve the petitions for 35 days to allow the defendants to appeal to the state Supreme Court.

Because of the basis of this decision, the strength of its conclusions, and the fact that it was unanimous, it’s unlikely that the N.J. Supreme Court will reverse this finding, and bar the recall effort. However, the Secretary of State, the Attorney General or Senator Menendez, who are the defendants in the case, have the right to appeal if any chooses to do so.

Under New Jersey law, supporters of the recall petitions would have 320 days after approval of their forms to gather and file 1,300,000 signatures. That would place the recall of Sen. Menendez on the next available statewide ballot.

This decision has importance far beyond the borders of New Jersey. Altogether, 18 states have recall provisions in their laws. Nine of those may well apply to Members of Congress. Any of the 26 states that lack recall laws but do have initiative laws could obtain the right to recall the way New Jersey did — by vote of the citizens themselves.

As for what may happen when the U.S. Supreme Court ultimately gets this issue, note the language in the original U.S. Constitution. It established no uniform law of elections for federal office. Instead, it adopted diverse state election laws by adopting the standard of the same voters who could vote for “the most numerous branch of the state legislature.”As a result, in the first U.S. election, blacks and people not owning property voted in some states. And in one state, interestingly, New Jersey, women voted.

The same adoption of varying state election laws occurred in 1913, when the 17th Amendment was passed to make Senators elected by the people, not appointed by the state legislatures. That amendment repeated the “most numerous branch" language from the original Constitution. This is one reason why the U.S. Supreme Court has accepted as constitutional that some states bar convicted felons from voting, with varying methods of lifting the prohibition. By contrast, other states allow felons to vote, no questions asked.

It is also why the Supreme Court has upheld voter ID laws. Some states require voters to show picture ID, usually a drivers license, though state ID cards for disabled people in lieu of licenses also serve. Other states have no such provision. Again, that difference in state election laws is fully constitutional according to the Supreme Court.

Defendants in this case claimed that the 1995 Thornton case controls. There the Supreme Court struck down state-established term limits for Congress as unconstitutional. Yet one of the reasons the Court so ruled was that it interfered with the voting rights of the sovereign people. In this case, upholding the rights of the people to vote as they choose supports, not opposes, the state provision.

More likely than not, when the Supreme Court rules on the recall of Senators, it will conclude that this question belongs to the sovereign people in each state, and that others may follow New Jersey’s example if they so choose to make recall as much a part of their election laws as the initial election which places the Senators in office in the first place.

Let the Recalls Begin

By Peter Ferrara

This article originally appeared on FOXNews on March 17, 2010.

A New Jersey state appellate court yesterday gave the green light for approval of the circulation of petitions in that state asking for a recall election to remove Democrat U.S. Senator Robert Menendez. State law in 9 states counting New Jersey specifically provides for the recall of members of Congress, just as former California Governor Gray Davis was recalled and replaced with Governor Arnold Schwarzenegger in a recall election in 2003. Those 9 states are represented by 12 incumbent Democratic Senators who are not otherwise up for reelection this year, potentially putting majority control of the Senate even more in play.

The New Jersey Secretary of State originally refused to approve the circulation of recall petitions when the request for such approval was filed by the Committee to Recall Robert Menendez last September, arguing that such recall was not authorized under the U.S. Constitution. The Committee sued for a court order compelling the Secretary to grant such approval in accordance with the New Jersey state constitution and Uniform Recall Election Law. The Committee seeks to recall Menendez because he voted for an unconstitutional government takeover of health care, and for record shattering federal deficits and debt. I filed an amicus curiae brief in the case on behalf of the American Civil Rights Union (ACRU) supporting the recall effort (read the brief and the opinion).

The New Jersey Constitution specifically provides, "The people reserve unto themselves the power to recall, after at least one year of service, any elected official in this state or representing this state in the United States Congress." That provision was added to the state constitution in 1993 in a referendum election, with an overwhelming, favorable vote of 76% to 24%.

Attorneys for Menendez argued that such recall of a U.S. Senator is not permissible under the U.S. Constitution. But the Recall Committee argued that this constitutional question was not actually before the court at this time. The Committee was not asking the court for an order to remove Menendez pursuant to a recall election. It was asking for an order mandating the Secretary of State to approve the circulation of recall petitions as provided under the state Constitution and Uniform Recall Election Law. Rather than prohibiting the circulation and signature of such petitions, the U.S. Constitution protected such political expression and participation, the Recall Committee argued.

If the Recall Committee was successful in obtaining the 1.3 million signatures necessary for a recall election, and if the majority of voters in such an election voted to remove Menendez, then the question of whether the U.S. Constitution allowed such a recall would be squarely presented to the court. But until that time, the Committee argued, the court should follow well established precedents providing that courts should not address constitutional questions until necessary.

The New Jersey court basically accepted this argument of the Committee, allowing the petition process to go forward, and expressly reserving decision on whether the recall would be constitutional if the necessary signatures were obtained. The court stayed its decision pending appeal to the New Jersey Supreme Court.

This case provides a precedent for recall petitions to go forward in the other 8 states providing for recall of U.S. Senators. Such recall efforts provide a new outlet for voters angered by a runaway Congress that refuses to listen to the people regarding the pending government takeover of health care, and that adopts budgets with record, trillion dollar deficits and government debt.

First Ever Recall Effort of a U.S. Senator Cleared by N.J. Court

(3/16/10) — “It has apparently never been done before, but a Tea Party group in New Jersey has won the first round in its effort to recall a U.S. Senator — Democrat Robert Menendez. ‘We are loathe to strike down a component of our State’s charter [Constitution] that fortifies the democratic role of our citizens,’ an Appeals Court panel ruled Wednesday morning. Tea Partiers upset with rising taxes tried last year to get permission from New Jersey’s Secretary of State to begin a petition recall campaign against Menendez. When that was denied, they went to court. And now they’ve won.”

Click here for the full story from NBCNewYork.com.

ACRU Cheers New Jersey Court’s Approval of Menendez Recall Petition

(3/16/10) — “It’s a huge win for self-government and the rule of law,” says ACRU’s Susan Carleson.

The Appellate Division of the Superior Court of New Jersey this morning ruled that a petition effort by two state Tea parties to recall Sen. Robert Menendez can go forward, pending an appeal by Menendez’s attorney.

The 3-0 ruling by the court says that the petition drive must wait 35 days while the Menendez team decides whether to appeal.

“The ruling today recognizes that the Constitution protects the political expression of the people of New Jersey in circulating and signing recall petitions,” said Peter Ferrara, General Counsel for the American Civil Rights Union (ACRU). “This is a precedent with national implications for recall efforts in other states, as well.”

The ACRU filed an amicus brief on Feb. 9 supporting The Committee to Recall Senator Robert Menendez, the group formed by NJ Tea Parties United and the Sussex County Tea Party.

After the Secretary of State approves the notice, the recall committee must obtain signatures of 1.3 million New Jersey voters. A previous Secretary of State under the Corzine Administration had ruled against the petition, triggering the court case.

The New Jersey constitutional language, enacted in 1993, became effective in 1995.

“Nine states have language allowing for broad recall of elected officials,” said ACRU Chairman and CEO Susan Carleson. “New Jersey’s is the most specific. It’s a huge win for self-government and the rule of law. The campaign in New Jersey can show the way to groups in other states that are considering recalling up to 11 other U.S. Senators who have voted yes on unconstitutional measures such as the government takeover of health care and who are not on the November ballot.”

Click here to read the appellate opinion. (PDF)

New Jersey Democrats Blast Tea Party

(3/10/10) — “New Jersey Democrats are coming out with guns blazing against a tea party-led effort to recall Democratic Sen. Robert Menendez, with the state party chairman going so far as to brand the campaign racist. Last week, newly minted Democratic Chairman John Wisniewski blasted the recall campaign as extremist, saying that it was no accident that it was targeting Menendez, the only Hispanic in the Senate. And without mentioning her by name, Wisniewski took a shot at the recall campaign’s leader, Sussex County tea party founder RoseAnn Salanitri.”

Click here for the full story from Politico.com.

Stopping the Runaway Congress

By Peter Ferrara

This article originally appeared on Big Government on March 3, 2010.

The recall of New Jersey Senator Robert Menendez took a step forward yesterday with a promising oral argument in New Jersey state court. The New Jersey Constitution expressly provides for the recall of members of Congress representing the state in a provision adopted by a 75% favorable vote of the people in 1995. The New Jersey state legislature then expressly provided by statute for the procedures for such a recall.

The Committee to Recall Robert Menendez filed papers for the circulation of their petitions to begin last September. But the Secretary of State, who has no authority to issue rulings on constitutional questions, nevertheless refused to approve them on the grounds that her own New Jersey state constitution must be unconstitutional under the federal constitution, which she said did not allow such recalls.

The three judge appellate panel considering yesterday whether the recall should proceed expressed reluctance to declare a provision of their own state’s constitution duly adopted by the people null and void. They also seemed receptive to the argument by the recall committee that they were only asking the court for an order for the circulation of petitions to proceed, and there is nothing in the U.S. Constitution that prohibits that. To the contrary, the U.S. Constitution protects the political expression involved in signing a petition calling for the recall of an elected official, and the petitioning of government for the redress of grievances. If the recall committee gets the required signatures from over a million citizens calling for the recall of Senator Menendez, and the majority of citizens vote to recall him in a recall election, and the Senator decides to thumb his nose at the will of the people anyway, then the issue of whether state recalls of members of Congress are constitutional under the U.S. Constitution would be presented to the courts. But until then all that the New Jersey recall committee is asking for is the freedom of political expression involved in gathering recall petition signatures, and the U.S. Constitution protects rather than prohibits that.

Based on the oral argument yesterday, the recall effort in New Jersey stands a good chance of getting the go ahead for now. That could have a powerful political effect in Washington right away. The law in 9 states provides for the recall of members of Congress, and those states include 12 incumbent Democrat Senators who are not otherwise up for reelection this year. So if the New Jersey courts allow the recall there to proceed, that means all 12 of these Democrat incumbents could be added to the ballot this year, putting majority control of the Senate even more in play.

That could cause Congressional Democrats to be more reluctant to follow Barack Obama off a political cliff. The 12 Democrat Senators potentially on the hook for a recall election will be more likely to decide they better spend more time listening to their voters than to Barack Obama’s ideological entreaties. That could be the final straw that stops Obamacare, in accordance with the will of the people.

Tea Party Group Seeking to Recall Sen. Robert Menendez Appears Before N.J. Appeals Court

(3/2/10) — “Appearing before a three-judge appellate panel in Trenton today, the attorney representing the Committee to Recall Senator Menendez—which is backed by the state’s grassroots conservative Tea Party movement—said his client has a right to begin an effort to remove the New Jersey Democrat.”

Click here for the full story from NJ.com.

Throw the Bums Out: Let’s Take It On The Road

By Peter Ferrara

This article originally appeared on Big Government on February 16, 2010

Eighteen states provide for recall elections to remove state officials. Nine of those provide for the same for their Congressional representatives. But such a right of recall can and should be adopted in every state.

Ideally this would be done by amending the state constitution to provide for such recall elections. But it can be done through statute as well, with the New Jersey Uniform Recall Election Law as a good model.

The greatest opportunity is in the states that already provide for citizen initiatives to put state constitutional amendments or proposed statutes on the state ballot for a vote of the people for adoption. In these states, the citizens can act directly, without depending on the politicians to adopt a check on their own power. The right of recall is desirable because it maintains democratic accountability to the people throughout the entire term of elected officials, rather than just at election time. This is more relevant now because increasingly we see an attitude among elected officials that they know best and the people are ignorant yahoos who should be ignored until they need to be fooled again at election time. The people need a right of recall to remove officials who display this anti-democratic attitude after they are elected.

We have seen this problem in particular in the health care battle, where Congressional representatives have displayed the attitude that the people are too gullible, confused and misled to understand the issue, and should be ignored by the wise elected officials who know better. Elected officials have responded to citizens voicing their objections with name calling, labeling them Nazis, racists, and tea baggers. These officials are still threatening to adopt a thorough government takeover of health care on the idea that the people will never be able to unscramble the mess. The right of recall is needed to shortcircuit this tactic.

Another increasing problem is candidates who campaign as conservatives to get elected, and then once they get in office they join with the far left to pass their agenda instead. With the right of recall, voters who feel they were snookered in this way can act to remove their representative once this pattern becomes apparent. With this power in place, candidates would be less likely to try to get elected on false pretenses in the first place.

The right of recall would also counter the growing problem of voter fraud. If voters feel there were too many shenanigans in a vote count, and don’t trust the result, they can act to provide for a new election. A perfect example is the recent extended vote count for Sen. Al Franken in Minnesota, which was based on a developed art form of focusing the recount on districts that heavily favor one party, where votes can be manufactured. With this success, rest assured that this will be tried again and again.

A recent example of recall in action was the 2003 removal of then recently reelected California Gov. Davis. The people voted overwhelmingly to remove him from office in a recall election, and replaced him with current Governor Arnold Schwarzenegger. This example shows that the recall process is practical and not counterproductively disruptive.

But anyone who wants to pursue such a recall, or the process of initiative to adopt recall for their state, should realize from the start that this is a time consuming process requiring the collection of likely millions of signatures on petitions, all in strict compliance with the letter of the law. You can bet that opponents will be looking for any legal variance to deny the whole effort. Therefore, the effort needs to be organized from the beginning with sufficient resources and experienced input to be successful.

Judge Approves Appeal of Menendez Recall Decision to Move Forward

(2/10/10) — “A NJ Superior Court Appellate Judge has granted an emergency motion to fast-track the appeal of a committee seeking to recall a United States Senator. In a two-part order issued late afternoon on Thursday, February 4th, Judge Edwin Stern granted the committee’s motion to accelerate their appeal and scheduled oral arguments for Friday, February 26th. In the same order, the Judge also granted approval for the American Civil Rights Union (ACRU) to participate in the appeal as amicus curiae (friend of the court), in response to an emergent application filed by the ACRU.”

Click here for the full story from LibertyChick.com.

Menendez NJ Recall Update: The Tea Party Goes to Court

(2/14/10) “In addition, the American Civil Rights Union (ACRU), has taken interest in the case and had filed an emergent application requesting approval to participate in the appeal as amicus curiae (friend of the court), given the broader constitutional implications of the case. In the same order, Judge Stern also granted the ACRU’s emergent application and approved the organization’s participation in the appeal.”

Click here for the full story from Big Government.

Let People Decide, ACRU Says in New Jersey Recall Brief

(2/9/10) Today the American Civil Rights Union filed an amicus brief in support of a grassroots citizens effort to petition for recall of Sen. Robert Menendez (D-NJ).

The Sussex County Tea Party and NJ Tea Parties United, which filed the original petition request to gather signatures as The Committee to Recall Senator Robert Menendez from the United States Senate, contend that Menendez has violated his oath of office by voting for unconstitutional measures such as the attempted government health care takeover bill.

The New Jersey Secretary of State at the time rebuffed the request. So the matter is in court. Menendez is up for re-election in 2012. A successful recall petition drive could put him on the ballot this November.

Peter Ferrara, general counsel for the American Civil Rights Union, who authored the brief, said, “We will just be supporting the Committee to Recall Robert Menendez in asking the Court to order the Secretary of State to follow the explicit New Jersey state law and to recognize the right of the people of New Jersey, as explicitly provided in the New Jersey State Constitution, to petition their government for redress of grievances, and to publicly express their opinion as to whether Senator Robert Menendez should be recalled.”

The Committee filed a notice of intent with then-Secretary of State Nina Mitchell Wells on September 25. After Wells failed to respond, the group filed a lawsuit. Wells resigned on Jan. 19 as the new administration of Gov. Chris Christie took office.

A lawyer for Lt. Gov. Kim Guadagno, who is serving as Secretary of State, will represent the state in court. Oral arguments are slated Feb. 26. If the petition goes forward, citizens will have to collect more than one million signatures totaling 25 percent of the votes in the last election.

“Senator Menendez thinks he has a constitutional right to freedom from criticism, and is asking the Court to enforce that right by shutting down the petition drive to recall him and the public expression by New Jersey citizens of their opinion regarding such recall,” Ferrara said.

New Jersey is one of eight states that have broad constitutional language providing for recall of elected officials, including Members of Congress. A ninth, Montana, has a recall statute. Here is New Jersey’s constitutional provision, which took effect in 1995:

Article 1 Section 2b

The people reserve unto themselves the power to recall, after at least one year of service, any elected official in this State or representing this State in the United States Congress. The Legislature shall enact laws to provide for such recall elections.

“The ACRU feels that the American people deserve to know that recalling rogue legislators is an option in several states,” said ACRU CEO and President Susan Carleson. “We do not advocate the removal of any particular official, nor does the ACRU participate in any petition gathering campaign. We are, however, providing as much information as possible to Americans who want to fully exercise their right to a representative, responsive government.”

Click here to read the amicus brief.

The Right to Recall the Rascals

By John Armor

This column originally appeared on Townhall.com on February 2, 2010.

Do the citizens of the states have a constitutional right to recall their Members of Congress before the end of their set terms, if they become satisfied that their Members are seriously harming the interests of the people who elected them?

The U.S. Constitution states no right to recall federal officials. But that’s not the end of the inquiry, only the beginning.

There are two main reasons why the right of recall can be established for all elected officials, including Members of Congress. One is that the Constitution delegates general election law to the states. The other is that the 10th Amendment reserves to the states and the people all rights not delegated to the national government.

High school textbooks say, and almost all people believe, that voting at the beginning was restricted to white, male property owners. All three points are false. The 1790 Census revealed that 5,000 property-owning residents of the Commonwealth of Virginia were free blacks eligible to vote. Some non-property owners were allowed to vote in some states; blacks were allowed to vote in some states; and the rarest exception was that women were allowed to vote in New Jersey. This variety of who was allowed to vote underscores that the Constitution gave freedom of definition of election processes to the states.

The right of recall has been rarely used, but it is older than the United States. It appears in the Massachusetts Charter of 1691. Several states included it when they rewrote their constitutions after the American Revolution. Recall of U.S. Senators was specifically included after 1789. It was not by popular vote, but by vote of the state legislatures, the “electorate” for Senators per the original Constitution.

Some will argue that a 1995 Supreme Court decision (U.S. Term Limits v. Thornton) saying that term limits on Members of Congress cannot be set by state law means that states cannot recall federal officials. However, there was a deliberate decision by the Constitutional Convention not to apply term limits to any elected federal official. They could have done the same with respect to recalls, which are part of the election process. But instead, they delegated the whole election process to the states. Whether or not the Court was correct in saying that term limits constitute a qualification of office, recall is not a qualification of office but merely part of the electoral process, which was left to the states.

Around the turn of the 20th century, popular recall provisions were inserted in the constitutions of numerous states. Some referred to recalling federal officials. The clearest language is a more recent addition to the New Jersey constitution, which became effective in 1995:

“The people reserve unto themselves the power to recall, after at least one year of service, any elected official in this State or representing this State in the United States Congress.”

Recall for state and local officials exists if it appears in the state constitution or state laws. However, recall does not have to appear in the Constitution or federal laws to be used on that level.

The Constitutional Convention debated the establishment of a federal (or national) election law. The problem was sharp differences among the states on who were "electors" who were allowed to vote.

The compromise struck at the Convention appears in the Constitution:

“Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” In short, the details of federal elections were left to state election laws. The Constitution gives Congress the power to regulate federal elections, which it has exercised on voting rights and on federal election funding, but not on election laws generally.

In 1912, Congress passed the 17th Amendment, changing the election of Senators from choice by legislatures to direct election by the people. The Amendment repeats the language about “the most numerous branch,” again delegating details of election law to the states. Congress wrote this, knowing that some states had recall provisions.

The final point is the 10th Amendment. It reads:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Note that the people of New Jersey used similar language in declaring their right to recall their federal officials.

Several states in their recall provisions do not allow petitioning to begin until the official has “been in office for a year.” Since all Representatives face new elections every two years, there is no strong reason to apply recall to them. With Senators, who serve for six-year terms, there is ample reason to have the power of recall, if it is available.

In 2010, Secretaries of State in two states have decided whether their state recall provisions apply to Senators from those states. In Louisiana, the Secretary has approved the form of petitions to recall U.S. Sen. Mary Landrieu. In New Jersey, the Secretary has ruled against the form of petitions to recall U.S. Sen. Robert Menendez. The latter decision has been appealed on a fast track basis in the New Jersey courts. It also may be withdrawn and reversed, since a new Governor, Chris Christie, has just been sworn in.

Both the Constitutional Convention and Congress itself in the 17th Amendment delegated election laws to the states themselves. In addition, the right of popular sovereignty is basic to all American governments. Thomas Jefferson wrote in the Declaration of Independence that “governments... deriv[e] their just powers from the consent of the governed.”

The proper conclusion is that the right of recall does remain with the citizens of each state, subject to the election laws of each state. This will remain true unless and until the highest court of competent jurisdiction rules that this provision of the New Jersey Constitution is unconstitutional under the U.S. Constitution.

The Right of Recall

By Peter Ferrara

This article originally appeared on Fox Forum on January 25, 2010.

Congress is out of control. The public overwhelmingly opposes the pending legislation for a government takeover of health care. But Congressional leaders are telling us they don’t care. They know best, and they’re going to pass it anyway.

We see the same attitude on other issues, from global warming regulation, to taxes, government spending, deficits, federal debt, energy policy, welfare, corporate bailouts, and beyond. Too many of our Congressional “representatives” seem unwilling to listen to the views of their constituents, insisting that they already know it all. They respond to dissenters with name-calling, labeling them yahoos, Nazis, and tea baggers.

This is not democracy, where the will of the people is to prevail. This is elitist authoritarianism closer to the abuses we see in countries like Venezuela.

But there is a mechanism within our political system to deal with such a runaway Congress: the Right of Recall. Nine states already have laws on the books providing for Recall of members of Congress: Colorado, Louisiana, Michigan, Montana, New Jersey, North Dakota, Oregon, Washington, and Wisconsin. These 9 states suffer 12 incumbent Senators who are members of the runaway Congressional majority not up for re-election in 2010.

For example, the New Jersey state constitution provides, “The people reserve unto themselves the power to recall, after at least one year of service, any elected official in this State or representing this State in the United States Congress. ” Tea party activists in that state, in fact, have already filed to circulate recall petitions regarding Sen. Robert Menendez. But the former New Jersey Secretary of State took the position that such Recall of members of Congress is not authorized under the U.S. Constitution. Grassroots activists in Louisiana have similarly already filed for Recall of Senator Mary Landrieu, and the circulation of Recall petitions there has been authorized. Exercising this existing statutory Right of Recall in these 9 states could potentially reverse majority control in the Senate this year.

We saw this Recall process work in California in 2003, where the electorate became disgusted with the then recently re-elected Democrat Governor, Gray Davis. They voted overwhelmingly to remove him from office in a Recall election, and replaced him with current Governor Arnold Schwarzenegger. A total of 18 states provide for Recall of elected state officials, including the above 9.

States without the Right of Recall for members of Congress can change their laws to adopt it. In states with the right to initiative, this can be done by a vote of the people after circulating petitions to put the change on the ballot.

What the current Congress is showing is that our representatives can no longer be trusted with 2-6 years in office without ongoing democratic accountability. Today’s Congressional majority is threatening to dump a load of bad legislation on the country despite the public’s opposition, daring us to try to clean it up later. Only a Right of Recall can prevent such abuses in the future.

The Right of Recall also counters the growing problem of voter fraud. If voters feel that an election was subject to too many irregularities in how it was conducted or in how the votes were counted, they can circulate Recall petitions for a new election, rather than waiting for the next scheduled election. Recall would also counter a growing problem of campaign fraud, where a candidate claims to be a reliable conservative on some or all issues, then goes to Congress and votes with the liberal Left. Such misrepresentation can be countered with a Recall election.

For these reasons, every state should adopt the Right of Recall for its voters. The constitutionality of Recall for members of Congress adopted under state law would ultimately have to be decided in the courts. Or the people could definitively decide the issue themselves through a constitutional amendment, or by electing a Congress that would adopt a federal statute authorizing each state to adopt such a Right of Recall.

Peter Ferrara is General Counsel of The American Civil Rights Union (ACRU). He served in the White House Office of Policy Development under President Reagan, and as Associate Deputy Attorney General of the United States under the first President Bush.