By John DiMotto
The political upheaval in Wisconsin, as a result of events in the Wisconsin Legislature over the past two months, has sparked a number of recall elections. While there has been much debate about recalls, there has been little discussion about the law itself. In this blog, I will address both Recall Law and the Recall Process.
Recall law is not unique to Wisconsin. Thirty-eight states have provisions for allowing recall of elected officials. Eleven states allow recall of State, local and federal elected officials. (Wisconsin is one of the eleven.) Seven states only allow recall of State and local elected officials. Twenty states only allow recall of local elected officials. Twelve state have no provisions for recall of elected officials.
Twelve of the states that allow recall of elected officials only do so if certain conditions - "grounds" - are present. However, a majority of the states allow recalls to proceed for no reason at all. Wisconsin is one of the states where grounds are not required.
In Wisconsin, the right of recall is provided for in the Wisconsin Constitution in Article XIII, Section 12. This provision was first enacted in 1926 and amended in April, 1981. It sets forth:
1) The qualified electors of the state, of any congressional, judicial or legislative district or of any county may petition for the recall of any incumbent elective officers after the first year of the term for which the incumbent was elected. (The right of recall has been extended to local elected officials by virtue of Wisconsin Statute section 9.10.)
2) A recall petition must be signed by electors equalling at least 25% of the vote cast for the office of governor at the last preceding election in the area which the elected official represents.
3) If a petition is certified a recall election shall be held on the Tuesday of the 6th week after the petition is filed.
4) The incumbent continues to serve and perform his/her duties until the recall election results are officially declared.
5) Unless the incumbent declines within 10 days after the filing of the petition, the incumbent shall be on the ballot at the recall election without the need to meet any filing requirements. Other candidates must comply with the law for special elections. If more than two people compete for a nonpartisan office, a recall primary shall be held. The two persons receiving the highest number of votes shall be the two candidates in the recall election, EXCEPT that if any candidate receives a majority of the votes, that candidate shall assume office for the remainder of the term and a recall election shall not be held. For any partisan office, a recall primary shall be held for each political party which is by law entitled to a separate ballot and from which more than one candidate competes for the party's nomination in the recall election. The person receiving the highest number of votes in the recall primary for each political party shall be that party's candidate in the recall election. Independent candidates and candidates representing political parties not entitled by law to a separate ballot shall be shown on the ballot for the recall elections only.
6) When a recall primary is required, it shall be held on the Tuesday of the 6th week after the filing of the petition with the recall election to be held on the Tuesday of the 4th week after the recall primary.
7) The person receiving the highest number of votes in the recall election shall be elected for the remainder of the term.
8) After one such petition and recall election, no further recall petition shall be filed against the same officer during the term for which he/she was elected.
9) Laws may be enacted to facilitate the operation of Art. XIII, Sec. 12 but no law shall be enacted to hamper, restrict or impair the right of recall. (The Wisconsin Legislature enacted 9.10 to facilitate this constitutional provision.)
Section 9.10 implements Article XIII, Section 12 by providing the process/framework.
1) A petition for recall of a state or federal elected official does not require any reason.
2) A petition for recall of a local elected official must contain a statement of the reason for the recall which is related to the official responsibilities of the official for whom removal is sought. see 9.10(2)(b).
3) A petition may only be filed after the petitioner has first filed a registration statement with the filing officer.
4) A petition may not be circulated until the registration is completed.
5) A petition must be filed on or before 5:00 pm on the 60th day commencing after registration.
6) Requirements for signatures to be valid and counted are set forth in 9.10(2)(e). (i.e. properly signed, dated, proper residency, qualifed elector, certification of circulator completed, etc)
7) Any challenge to the validity of signatures shall be presented by affidavit or other supporting evidence demonstrating a failure to comply with statutory requirements.
8) Burden of proof is on a challenger to the petition and signatures.
9) Time limit for challenger filing written challenges to petition -- within 10 days of filing. Time limit for petitioner to file a rebuttal -- within 5 days after challenge filed. Time limit for challenger to file a reply -- within 2 days after rebuttal filed. Certification of petition by filing officer -- within 14 days after filing of a reply. Determination on sufficiency of petition -- within 31 days after certification. Time limit to file a petition for writ of mandamus or prohibition with the circuit court by petitioner or elected official for the court to decide the sufficiency of the petition -- within 7 days of the filing officer's determination on sufficiency of petition.
10) There shall be separate elections for each official subject to recall.
The Government Accountability Board has information on its website with respect to the recall process.
While the right of recall is recognized in the Wisconsin Constitution, there is a debate over its use. There are many people who believe that recalls should be the exception and not the rule. They believe that mere disagreement over the decisions made by an elected official should not be the basis for a recall, rather it should be reserved for malfeasance, misconduct, failure to perform duties or particularly egregious behavior. They believe that absent such circumstances that the elected official should have the right to finish out his/her term and be accountable at the next election cycle. On the other hand, there are many people who believe that if they do not have confidence in an elected official, or if an elected official has "lied" to them or disappointed them or if they do not believe that an elected official is serving their interest or if they just don't like an elected official or even if they have no reason at all that they should have the ability to pursue recall of any state or federal elected official.
Whether you agree or disagree with the exercise of the right of recall, it is a recognized right of citizenship; a right of expression guaranteed by the Wisconsin Constitution.