Peter Ferrara: Let the Recalls Begin


ACRU Staff


March 17, 2010

ACRU General Counsel Peter Ferrara wrote a column appearing on 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 (the brief and the opinion can be found at

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.



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