Alaska: Division of Elections Rejects Grounds for Gubernatorial Recall, setting up lawsuits

Update: I am editing the original post to include today's news:

The Alaska Division of Elections unsurprisingly rejected the recall attempt against Alaska Governor Mike Dunleavy (R), a ruling that is only the kickoff to lawsuits that may finally decide the shape of Alaska's unique recall law, and may eventually lead to a Supreme Court ruling that results in a recall. The Director of the Division of Elections was tasked with deciding whether the effort to recall Dunleavy meets the for cause statutory "malfeasance standard" requirements to allow a recall on the ballot and that petitions can be taken out by recall proponents.

However, the Alaska Attorney General Kevin Clarkson first submitted a recommendation against the recall effort. Here's an example of a previous negative recommendation against State Senator (and Majority Leader) Kyle Johansen.

We should first put this in some national and state contexts. I wrote the following op-ed on the effort to recall Alaska Governor Mike Dunleavy (R) after his line item vetoes.

There have been six other governors who have been threatened with a recall this year, though the Alaska recall effort stands out.

1) Dunleavy is the only Republican facing a recall effort -- the other five are Democrats.

2) This recall drive may be seen as significantly less partisan -- numerous Republicans are involved in the petition effort. The others recall efforts appear to be explicitly partisan to the degree that the state party chairs are publicly involved.

3) Unlike the other states, due to Alaska law, if Dunleavy is removed, he will automatically be replaced by a Republican, his Lieutenant Governor Kevin Meyer. Oregon has some questions in this area, but the the leaders of the other five recall efforts clearly believe that they will flip the State Executive with a successful recall.

4) Alaska and Washington were the only states among the six facing recall efforts that had a "malfeasance standard," which means that the courts could throw the recall out. This already happened in Washington.

The first three points speak for themselves. But the fourth one is arguably the most important.

Nineteen states allow for a recall of a governor. But there is a big division in what is needed to get a recall on the ballot. In 11 states, including the five mentioned above, there is a political recall law. Under these laws, officials can face a recall for almost any reason. Causes of action, such as alleging actual criminal behavior or incompetence, is not required at all for the recall to move forward.

Alaska has what I call the malfeasance or judicial recall (not to be confused with a recall of a judge) standard, requires that the petitioner show a violation of a law, lack of fitness or some manifest incompetence. These laws vary greatly from state to state. In Illinois, only the governor is covered by recall, and in Virginia, there is no election but rather a judicial hearing. But all of these malfeasance standard states require an agency or the courts to hold that a specific, statutorily delineated bad act was performed by the elected official.

The difference is clear. There have been six state-wide recalls in US history, all in political states. There have been 39 state legislative recalls. Only one (in Washington in 1981) was in a malfeasance standard state.

In Alaska, the malfeasance standard appears to operate quite a bit differently than other states, in such a way that it is almost a hybrid version that may allow political recalls at will.

In Alaska’s case, petitioners must first gather verified signatures amounting to 10% of the turnout in the previous election (28,501), and then have the director of the Division of Elections-- headed by the same Lieutenant Governor who would become governor if Dunleavy is removed -- agree that the reasons stated in the petition meets the cause requirements in Alaska’s law. The Division asks for a recommendation from the Attorney General. If the director approves this, petitioners must then gather signatures amounting to 25% of turnout (71,252 signatures). In the past, the division has rejected recalls against a governor, two state senators and one assembly representative due to a failure to state a valid cause of action.

The conservative Must Read Alaska website, run by Suzanne Downing, has some very good details on the recall efforts that have gone to the division. It seems many recalls do not get to that level, as Alaska has had a good number of local recall elections over the years.

On the other side, longtime columnist Dermot Cole has thoughts on why the recall may be able to go forward.

The big question is how the courts will view this. Despite the strict malfeasance standard language of the Constitution, a 1984 Alaska Supreme Court ruling held that the recall law “should be liberally construed so that the people are permitted to vote and express their will” - at least on the local level. In 2017, a Superior Court judge used this decision to allow a recall to move forward against three Homer City Council members over their support for protesters against the Dakota pipeline. In the end, the Homer recall took place, though all the officials survived the vote. The Homer recall is not the only one to take place in recent years. This liberal construction of the recall has led to at least 27 recalls making the ballot since 2011, including the mayor of Whittier and a city councilman in Sarah Palin’s hometown of Wasilla. The Attorney General's recommendation seems to ignore this discrepancy of how courts have used the recall in the state.

What does this mean? One, as always as usual, we are ending up in the courts before this move forward. Two, the petitioners clearly think they have a good chance of success. But plenty of others have thought that in the past. Will the Alaska Supreme Court accept this liberal approach to recall law and allow it to go forward, or will they dial this effort back? It seems like we are about to find out.