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Home / Capitol Insiders / Arizona’s unusual recall provision for federal officials untested, nonbinding

Arizona’s unusual recall provision for federal officials untested, nonbinding

There’s no way to recall members of Arizona’s U.S. Senate and congressional delegations, but that doesn’t stop people from trying.

A 1973 law passed by the Arizona Legislature allows candidates for federal office to voluntarily file a statement with the Secretary of State’s Office pledging to resign their seats if they lose a recall election.  However, there is no recall provision in the U.S. Constitution and any recall election would not be binding.

No one has ever collected enough signatures to put a federal official on the ballot for a recall election. And if it did happen, Deputy Secretary of State Jim Drake said his office would likely ask the Attorney General’s Office for an opinion on whether the state would even have to hold the election in the hopes of avoiding a costly vote that could be ignored by the official in question.

Drake said the state probably lacks the authority to cancel the vote, but would likely seek clarification on the law anyway.

“Thankfully, we have not yet determined how binding that might be in Arizona. But should it ever go down that road and it gets far enough along, we would, of course, ask for an AG opinion,” he said.

In the statements on recall, a candidate declares, “I shall deem myself responsible to the people and under obligation to them to resign immediately if not re-elected on a recall vote.” They can also sign statements informing voters that they would not deem themselves obligated to abide by the results of a recall, though few have ever done so.

Parts of the federal recall statutes are clearly unenforceable. They state that the laws relating to the recall of state officers are applicable to U.S. senators and representatives as well, and call for their successors to be, “elected in like manner as a state officer.” Under the recall system for state officers, all candidates for the position are on the ballot so that if the targeted officeholder loses the election, a successor is chosen at the same time.

Other candidates could challenge a federal official in the recall election, but would be legally barred from taking office if they won, said former state Elections Director Joe Kanefield. If the officeholder resigned after the recall — though there would be no legal obligation to do so — a successor would be chosen through the normal replacement process. For senators, that would mean a gubernatorial appointment, while representatives would be selected through a special election.

“It strikes me that there’s some ambiguity in that statute. You’re essentially requiring a vacancy to be created as a result of a pledge by a federal official,” Kanefield said. “It’s not clear what happens then.”

Many people question the wisdom of even having the statute on the books. Rep. John Kavanagh, a Fountain Hills Republican, referred to the law as “futile.”

“That has no public purpose. If it’s not the real thing, why should the taxpayers pay for it?” he said.

Leonard Clark, who took out an unsuccessful recall petition against U.S. Sen. Jon Kyl in December and has sought multiple recalls against Sen. John McCain in past years, disagrees. The recall is part of Arizona’s proud Western tradition, Clark said, and if Kyl or McCain refused to step down after losing a recall election, voters would punish them for going back on their word.

“At that point, I think they’d be politically dead on arrival,” Clark said.

Clark tried to recall Kyl over his opposition to extended federal benefits for 9/11 responders and the DREAM Act, while McCain has faced recall attempts from critics on both sides of the aisle. In 2009, a Tucson man pulled a recall petition against U.S. Rep. Gabrielle Giffords over her vote for “cap-and-trade” carbon tax credit legislation.

Every current member of Arizona’s U.S. House and Senate delegations has signed a statement of recall, except for Rep. Raul Grijálva.

According to the National Conference of State Legislatures, Arizona’s law is one of a kind. Nineteen states permit the recall of state-level officials and at least 10 more allow voters to recall local officials. But only Arizona gives federal candidates the option of publicly pledging to resign if they lose a recall election.

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