Sunday, July 18, 2021

Alaska: Supreme Court issues written ruling greenlighting gubernatorial recall -- may effectively push state to Political Recall rules

More than a year after ruling that the recall of Alaska Governor Mike Dunleavy (R) can proceed, the Alaska Supreme Court has finally issued its written ruling in the recall effort against  and, though the recall effort may not get anywhere, it is quite an important one for Alaska -- it could open up the recall to much wider use in the state.

Alaska has had 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. 

This decision may have ended that standard and effectively pushed Alaska into the ranks of the "Political Recall" states. Alaska has been moving in this direction since the 1980s, but this could open up the state to more recall attempts. 

The decision doesn't spell this out, but both the partial dissent and the governor's statement do. Dunleavy's statement:

"The Alaska Supreme Court today issued an opinion that creates a standardless recall process, subjecting elected officials at every level, and across the political spectrum, to baseless, expensive, and distracting recall elections by their political opponents."

From Judge Stowers partial dissent: 

"I urge every legislator to carefully consider the court's opinion today. The opinion opens the door to standardless recall petitions...The greatly expanded access to recall created by the court's decision today can and will be used not to actually seek to recall an elected official for cause, but instead to seek to recall an elected official because of disagreements over policy. And in Alaska, disagreement over policy or political philosophy is not a proper subject for recall.  

The ruling walks through Alaska's adoption of the recall law. The Constitution's delegates left it up to the legislature to draft laws setting up the recall provision. The legislators codified the law in 1960 and in 1972 prescribed the grounds and procedures for recall of local officials looking at the big court decision in 1984 that set Alaska on a "middle ground."  

Alaska's law is different than the traditional malfeasance standard. The 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. This liberal construction decision could change that. 

Whether the recall will get on the ballot is not clear -- petitioners seem to have hit a lull in signature collection (81% of the 71,252 needed -- though that is unverified). Alaska has no deadline on recall petitions once they are issued, so they can keep collecting until the term is practically up. 

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 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.

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