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Recall of U.S. Senators Is Unconstitutional, Says the New Jersey Supreme Court

By Eugene Volokh

(Eugene Volokh)

The opinion is Committee to Recall Robert Menendez v. Wells. I think the majority is right on its conclusion that a recall would indeed be unconstitutional. I quote below the argument that I made earlier this year on the subject, which is chiefly based on the constitutional text; for more, and for a good deal of historical evidence, see the majority opinion.

One could argue that an attempt at a recall should be treated as a constitutionally permissible advisory but not binding recall vote, but neither the 4-Justice majority nor the 2-Justice dissent discusses that. I can?t speak with confidence about whether the majority was right in reaching the constitutional question, or whether the dissent was right that the constitutional question shouldn?t be resolved until enough signatures were actually gathered.

Thanks to Gary Myers for the pointer.

* * *

The relevant constitutional provision is the Seventeenth Amendment, though the issue would have been similar under the pre-Seventeenth-Amendment constitutional provisions, which provided that senators would be elected by state legislatures but likewise didn?t allow recall. The Amendment reads:

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

Now this makes one thing clear: The term of a Senator shall be six years. Six shall be the number thou shalt count, and the number of the counting shall be six. Five shalt thou not count, excepting that thou then proceed to six. (Amen.)

So let?s ask: May a state say that its Senators will be elected for twelve years? No. How about for two years? No. ?The Senate ... shall be composed of ... Senators ... elected by the people [of each State] for six years.?

Yet a recall after two years means a voters are trying to do what we just agreed a state may not: They are trying to shorten the term of the Senator. That they are doing it on an ad hoc basis (only this Senator will serve a shortened term) rather than on a systematic basis (all our Senators will serve shortened terms) doesn?t, I think, change the analysis.

To be sure, the Tenth Amendment tells us, ?The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.? But the Seventeenth Amendment?s command that Senators serve six-year terms is a prohibition on shortening their terms. And this is true even if you agree with the dissent in U.S. Term Limits, Inc. v. Thornton; the dissenters note that ?the Framers denied to the States [the power of recall] when they specified the terms of Members of Congress.? The dissenters thought that the mentioning of some qualifications doesn?t exclude states from imposing others, the state law involved in U.S. Term Limits itself. But the mentioning of a fixed term does exclude states from shortening that term.

(Note: There is an exception to the six-year term for Senators who are elected to fill out a term, but that relates to the One-Third Clause of article I, § 3, the little known numerical relative of the Three-Fifths Clause, and to the Three Classes Clause. OK, I just made those names up, but the clauses are real.)

To be sure, a Senator may serve less than six years if he dies, resigns, or is expelled. The answer as to resignation and expulsion is that they are specifically contemplated by the Constitution. The mention of resignation is in a part of article I, § 3 that is otherwise supplanted by the Seventeenth Amendment, but the acknowledgment of resignation in the original provision nonetheless reflects an understanding that resignation can terminate a Senator?s term, and there?s nothing in the Seventeenth Amendment that suggests the contrary.

The answer as to death is that the drafters aren?t idiots, and the inevitability that someone in office will die suggests that some terms ? whatever the legal plans ? will not continue for the full six years. The Seventeenth Amendment reference to ?vacancies? is surely a reflection of that (plus of resignations).

On the other hand, the reference to ?vacancies? would not, I think, encompass vacancies created by recall. The reference to vacancies follows the clear command that the term shall be six years. Constitutionally sanctioned exceptions (resignations and expulsions) are exceptions to the term provision. Inevitable and routinely occurring events such as death must surely be exceptions to the term provision.

But discretionary decisions by the states or the people are not necessary or textually sanctioned exceptions to the term provision. And this is especially so when there is no history of such legally binding decisions (here is where history may supplement text, especially given the reference to ?vacancies?). While Senators in the Nineteenth Century apparently sometimes resigned when asked to do so by their state legislatures, that was never seen as a legally binding means of creating a vacancy.

Full post as published by The Volokh Conspiracy on November 18, 2010 (boomark / email).