Wednesday, December 5, 2012

Michigan: Analysis of proposed changes to recall law

I've mentioned that Michigan is the nation's leader in recalls (a position backed up here). Now, members of the legislature are suggesting major changes to the law, and it has already passed one committee. One of these changes is straight out common sense. Others are both a form of incumbent protection and begging for an increase in litigation.  Let's look through them:

1) Change the recall vote to a one day election. Currently, Michigan uses a two-day process. The recall is an up or down vote on the elected official. If the official is ousted, there is a replacement vote is held at a later date. Many states with recalls use this two-day process, but most of the states that are the big users of recalls (California, Wisconsin, Nevada, Colorado) use the one day election. There's a good reason to promote the one day recall -- a two-day process jacks up the cost (the Miami-Dade recall -- which also had a run-off, was estimated to cost $15 million).

From the legislation, it looks like Michigan is looking for a Wisconsin-style recall, where the recall operates as a straight new election. California's recall is different, as it has an up or down vote on the official, and, on the same ballot, has a replacement vote.

I believe this change would help incumbents. It gives them an opponent to hit. However, the undeniable cost savings makes this idea a no-brainer.

2) Another piece of legislation would require a "factual" determination of the charges. The Board of Elections to determine whether the charges in the recall petition are accurate. Currently, Michigan law has a board decide whether the petition language is clear (which itself takes time), but does not have a check on factual accuracy. How they determine the facts is of course a matter of great debate. We can only say for sure one thing -- Having them decide accuracy is basically begging for lawsuits on every recall. This helps scare off challengers, and increases the cost of trying to get a recall on the ballot -- which already may be the single biggest factor in recall races.

3) Recalls would only take place in May and November. This is probably argued as a money saving measure, but this may be a big incumbent protection move. I have to delve into this year's numbers, but I believe that recalls held as a special election are much more likely to succeed. (As an aside, the law is very unclear how this would operate -- it also says that the recall should be held on the regular election before the 95th day after the petitions are submitted).

4)  There is also a proposal that the no recalls can be held in first and last six months of a term. I'm puzzled by this change, as I (and all the sources I've seen) thought this was the current law. It is certainly true that this would help incumbents.

Note this statement by one of the supporters. I assume he is talking about recall petitions, not actually recall races:
“In a one and a half-year time frame, we knew of 165 township officials facing recall,” said Tom Fraser of the Michigan Townships Association. “And school districts suffer the same type of situations.”

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