After I wrote yesterday about how the "Tea Party's" bid to recall Senator Bob Menendez, Rosi kindly pointed me to an In The Lobby post looking into how Governor Corzine's Secretary of State rejected the petition:
"It has been determined that the qualifications and election of a Member of the United States Senate is a matter of exclusive jurisdiction of federal authority and that neither the United States Constitution nor federal statute provide for a recall proceeding for a federally-elected official.
Therefore, in my capacity as the Chief Election Official of the State of New Jersey, I hereby determine that neither the Notice of Intention to Recall nor the proposed Petition can be accepted for filing or review."
In The Lobby points to New Jersey State 19:27A-2 Power to recall elected officials which specifically states that a Senator or Representative can be recalled. (Though, as I said, the numbers required are too high to succeed.) In The Lobby is partly mistaken -- they think Title 19 is part of the Constitution passed by voters, but it is actually a law passed by the legislature -- but it hardly matters. It sounds like the recall attempt should have been allowed -- though not only do they need 1.3 million signatures, but 19:27A-6 says every copy of the petition will need a statement of how much the election will cost up front for voters to read, so I even more skeptical of success, though they do have 320 days to collect signatures.
Why, then, is it widely believed that despite this state law, a Senator cannot be recalled? That's due to a 1967 federal court case where a judge ruled that a right-wing activist could not try to recall Senator Frank Church over his opposition to the Vietnam War. (Yeah, the more things change, the more things stay the same.) The New York Times described the ruling on October 1, 1967 (page 47):
United State District Judge Alfred C. Hagen has ruled that a United State Senator "cannot be recalled by the people of the state from which he was elected."...
The judge said a state recall of a Senator would violate the portion of the Federal Constitution, which says of Congress that "each house shall be the judge ofthe elections, returns and qualifiications of its members."
The ruling did not go to the U.S. Supreme Court but Lousiana's Attorney General recently rejected a recall drive (for a Republican) on the same grounds. Certainly the activists can hope for different rulings in the courts, perhaps even taking it all the way to the Supreme Court, but the Secretary of State seems to have had a valid reason to reject the petition drive.
Now does this mean that it's impossible to remove a corrupt Senator from office, as I have seen some bloggers rant around the Internet? No. The Constitution's Article I, Section 5 states that "Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member." Members of Congress have been expelled but not one has even been recalled.
So, all the Tea Party activists have to do is convince every Republican in the Senate plus nearly half of the Democrats that Menendez deserves to be kicked out. Well, it's about as likely as getting 1.3 million people to sign a petition saying they want to spend millions of dollars on a special election.
The bottom line is that this is an example of a constitutional controversy: New Jersey state law unambiguously says a Senator may be impeached, but the federal courts have ruled that states do not have that power. |
