The governor, lt. governor, and as many as four state senators face recall elections next year. So is use of the recall power against these incumbents consistent with Wisconsin law? There’s an answer in a solid post at the Marquette Law Faculty blog from Edward Fallone entitled, The Original Intent of the Recall Power.
(Fallone, himself, takes no position on the recall of Gov. Walker, but merely considers the legitimacy of recalls generally.)
He assess the contention that Wisconsin recall elections are justified in only limited circumstances (“Recalls are designed as special interventions when elected officials become guilty of serious malfeasance in office or when they engage in illegal actions or indulge in offensively immoral behavior”) and concludes that
This statement is objectively false. The recall provisions contained in the Wisconsin State Constitution were never intended to be limited in such a fashion. The original design of the right of recall is, in fact, intended to permit voters to recall elected officials for virtually any reason so long as the procedural mechanisms of the State Constitution are followed.
Surveying national and Wisconsin commentary at the time the recall power became part of our law, Fallone finds in our history ample evidence that there was no intent to circumscribe the recall power, as there was, by contrast, with use of the impeachment power:
Not surprisingly, the actual text of Article XIII of the Wisconsin Constitution reflects the history outlined above. In a previous post, I listed the many reasons why the text of the Wisconsin Constitution itself is inconsistent with any limitation of the recall power to instances of criminal or ethical wrongdoing. First, the right of recall in Article XIII, Section 12, is guaranteed by the text without any limitation on the use of that power. We should not read a narrow limitation into the text without any language to support such a limitation. Second, instances of “corrupt conduct” or the commission of crimes and misdemeanors by elected officials is specifically made subject to the separate impeachment provisions of Article VII. We should not read a general grant of power to be duplicative of a more specialized constitutional provision, because it is improper to read any constitutional provisions as surplusage.
Third, the differences between impeachment and recall are significant. Impeachment, for serious offenses, can occur quickly. Recall elections take a long time, and seem ill suited as a means of removing serious transgressors. By the same token, impeachment is a vehicle whereby legislators un-do the choice of the electorate, so it is appropriate to limit the impeachment power to serious offenses. In contrast, recall is the action of the electorate to un-do its own choice, thereby making a lower standard for removal appropriate. Finally, serious allegations of wrongdoing trigger due process rights to defend oneself, which is the case in an impeachment proceeding. The lack of a vehicle for the recalled official to defend himself in Article XIII indicates that the recall power is not dependent upon any allegation of wrongful conduct.
The entire post, and his earlier one to which I have provided a link from within the excerpt above, are well worth reading.
One may dislike the recall power, but it’s only through ignorance or misrepresentation of our history and law that one would contend the Wisconsin Constitution’s right of recall is limited to certain, expressly-stated circumstances.