On Nov. 2, Illinois voters will decide whether to amend our state constitution to allow for a recall election to remove a governor from office. While the concept raises no civil liberties concerns, the process proposed in the amendment is contrary to democratic principles and violates the constitution.
Recall is a political matter. In most states with a recall law, the measure requires no grounds or bad conduct by the officeholder, and it expresses the will of the voters through a special election. Impeachment, the other mechanism by which an official may be removed from office, requires specific wrongdoing and is a legal process carried out by the legislature. Eighteen states provide for the recall of state officers, and the requirements generally are rigorous. Besides the 2003 recall of California Gov. Gray Davis, only one other governor has ever been recalled — Lynn Frazier of North Dakota in 1921.
Those who favor recall believe it places deserved power in the hands of voters and eliminates the need to rely on legislators to impeach officials. Objectors believe terms of office are relatively short and that recall elections are expensive. Whatever one may think of the merits of recall, everyone agrees that the procedures must be fair and treat voters equally.
Unfortunately, the Illinois proposal does not meet these basic requirements. The Illinois amendment requires that a recall petition be signed by a number of voters equal to at least 15 percent of the votes cast for governor in the last gubernatorial election, with at least 100 signatures from each of at least 25 separate counties. It is this requirement for voter signatures from multiple counties that throws an unconstitutional wrench in the works.
Nearly 50 years ago, the U.S. Supreme Court affirmed the core principle of one person, one vote.
Illinois’ proposed amendment violates this principle because by requiring 100 signatures from each of at least 25 separate counties, the signatures of electors in less populous counties will have greater value than the signatures of electors in more populous counties. While one person, one vote generally requires election districts to have approximately equal numbers of voters, the populations of registered voters in Illinois counties vary widely, from 3,376 in Pope County to nearly 2.9 million in Cook County.
For example, using the 2006 gubernatorial election as an index, a recall petition would require approximately 530,000 signatures. Under the proposed amendment, the electorate in Illinois’ most populous 24 counties (6.4 million voters), which contains 84 percent of the registered voters, could not petition for a recall of the governor, but 530,000 of the remaining 16 percent of registered voters (1.2 million) properly distributed among the 78 remaining counties could successfully petition for a recall. This disparity clearly violates the one person, one vote principle.
It may be our legislature wanted to ensure broad geographical support for a recall effort. But the Supreme Court, in Moore vs. Ogilvie (an Illinois case), long ago rejected that objective as a valid justification for imposing a geographical signature requirement on districts with varying numbers of electors. All voters, the court said, must be treated equally, whether they are urban or rural or come from sparsely settled or populous counties.
Passage of the proposed amendment will only lead to voter distrust and confusion. The unfair burden the amendment places on a future recall effort is substantial and unconstitutional. If passed, the amendment is likely to be challenged in the courts, either by voters seeking recall or by a corrupt governor seeking to stave off a recall election. When faced with the issue, the judiciary will likely strike down the entire amendment unless it finds that the legislature intended to have a recall amendment even in the absence of the multicounty signature requirement.
Whatever the resolution may be, voters who support recall should not have to depend on its outcome to give meaning to their vote.
The legislature should go back to the drawing board on recall.
Harvey Grossman is the legal director for the American Civil Liberties Union of Illinois.
