Friday, August 30, 2019

Alaska: Thoughts on the Unique Challenges of the Alaska Gubernatorial recall

I wrote the following op-ed on the effort to recall Alaska Governor Mike Dunleavy (R) after his line item vetoes. I want to expand on those thoughts here.

While there have been five other governors who have been threatened with a recall, the Alaska recall effort stands out.

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

2) The recall drive is 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 is the only "malfeasance standard" state to have a recall effort, which means that the courts could throw the recall out.

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, which 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. 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.

But at the same time, 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. The judge noted that the Alaska Supreme Court has previously held that the recall 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.

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.

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