Sunday, May 10, 2020

Alaska: Supreme Court rules in favor of recall effort against Governor

The Alaska Supreme Court ruled that the recall petitions against Alaska Governor Mike Dunleavy (R) can moved forward. The Court upheld an Superior Court ruling and tossed out the Attorney General’s determination that the recall was not allowed under the state’s malfeasance standard. There was a partial dissent from Justice Craig Stowers, who was against allowing the recall to advance on two of the four listed grounds, but it sounds like he was in agreement on the other grounds.

 A few important points here:

 The pandemic has been a significant problem for recall campaigns as they have been unable to use traditional means to gather signatures, but Alaska’s unique recall law may give it a better chance of getting to the ballot.

Alaska has no deadline on recall petitions once they are issued. I have to check, but I believe it is the only state to have such a lenient requirement for state level officials. From what I’ve seen, other states have anywhere from 60 days to 270 days to collect the signatures. While petitioners have said that they will start collecting using a mail-in system, this “no time-barred” rule should be a great benefit for petitioners.

Another factor to consider is that if petitioners they want to get the election on the ballot for November, they need to turn signatures (71,252) in about two months. Otherwise, the recall would take place as a special election. There are pluses and minuses to both sides. There is a general belief that holding the recall on the same day as the Presidential race would be beneficial to Dunleavy, as Alaska is likely to vote in favor of Republicans and Trump (it has only once voted for a Democrat for President – 1964 – and since 1968, the highest percentage a Democrat has ever gotten is 40.81% of the vote). That said, to my great surprise, recalls appear to be more likely to succeed in a general election than in a special (Note that the previous gubernatorial recalls were all special elections).

Additionally, Dunleavy would automatically be replaced by a Republican, his Lieutenant Governor Kevin Meyer. This would clearly mitigate (though of course not end) the push to claim that the recall is purely partisan.

The full decision has not been released as of yet, so we do not know the full impact on Alaska’s recall law. While the written decision won’t affect the Governor, it could have an outsized effect on Alaska’s recall law. Alaska has a 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 and requires an agency or the courts to hold that a specific, statutorily delineated bad act was performed by the elected official.

The recall is over major spending cuts (some of which have since been reversed), delays in appointing judges misusing state funds and mistakenly vetoing funds.

This is the first time in US history that a recall has been allowed against a Governor in a malfeasance standard state.

Alaska's law is different than the traditional malfeasance standard. A 1984 Alaska Supreme Court ruling in Meiners v. Bering Strait School District, 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. This liberal construction of the recall has led to at least 27 recalls making the ballot since 2011.

On the state level, we have not seen the more liberal construction standard used. In recent years, recalls have been rejected against a governor, two state senators and one assembly representative due to a failure to state a valid cause of action. A liberal construction decision could change that. There is probably good reason to believe that the courts may not take a stand on the subject, as they do not need to in order to approve this petition, but we will see.

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