Arizona Supreme Court Allows Pearce Recall to Move Forward, Rejects Constitutional Challenge

On November 8, 2011, voters in Arizona’s Legislative District 18 ousted Senate President Russell Pearce in a historic recall election—the first successful recall of a sitting legislator in Arizona and of a sitting Senate president in the United States. The Arizona Supreme Court allowed the election after dismissing District 18 voter Franklin Ross’s objection to procedures used to obtain the signatures necessary for recall.

The Court’s opinion in Ross v. Bennett reinforces Arizona’s robust embrace of recall elections. This reinforcement signals the Court’s continuing, 86-year devotion to defending the populist structure of the Arizona Constitution.

Ross proceeds in two parts. In the first part, the Court reviews the history and meaning of recall elections. It also reaffirms that recall and initiative petitions need only substantially comply with applicable legal procedures, while referendum petitions must strictly comply with the same. In the second part, the Court reviews the procedures used in the Pearce recall petitions, finding that they substantially comply with governing law. The Court also finds the applicable statutes consistent with the Arizona Constitutional provisions governing recall.

Ross justifies the substantial compliance standard with the following points: (1) Arizona’s unique history regarding recall entails liberal protection of the public’s right to recall public officials; (2) recall favors the will of the public over protection of legislators; (3) recall elections require minimal intrusion on the lawmaking process; (4) recall asserts public will, rather than that of a loud minority; and (5) recall petition requirements protect against fraud and abuse.

The decision is significant in its rejection of calls to curb the strength of direct democracy mechanisms. Arizona’s Constitutional framers and western-state populists, who first advocated adoption of modern direct democracy mechanisms, saw them as means to divest the legislature of policy-making authority, combating the pervasive influence of corporate interests in capturing state and local officials.1 In contrast, many eastern- and southern-state politicians embraced Madisonian views of state legislative power—that it should rest squarely with the legislature, rather than incorporating direct democracy mechanisms.2

Modern critiques of direct democracy mechanisms generally and recall particularly reflect the tension between populist and Madisonian views. While recall may be used by the public to recall captured politicians, special interests may likewise attempt to recall uncaptured politicians.3 More importantly, overzealous use of recall may result in absurd or distasteful results: Uninformed voters may assert their own prejudices and self-interests over the good of the state.4

Yet, recall serves as an inherent piece of Arizona’s political process. It aims to protect the public, engendering trust in the system when particular politicians face overwhelming public dissatisfaction.5 The Court’s procedural support of recall enhances Arizona’s populist political processes.

  1. Id. at ¶ 7; see also Nathaniel A. Persily, The Peculiar Geography of Direct Democracy: Why the Initiative, Referendum and Recall Developed in the American West, 2 Mich. L. & Pol’y Rev. 11, 28–29 (1997). 

  2. Stephen M. Griffin, California Constitutionalism: Trust in Government and Direct Democracy, 11 U. Pa. J. Const. L. 551, 552–53 (2009). 

  3. See John Dinan, The Original Intent and Current Operation of Direct Democratic Institutions, 70 Alb. L. Rev. 1035, 1035 (2007) (discussing the same with regard to initiatives). 

  4. See Daniel M. Warner, Direct Democracy: The Right of the People to Make Fools of Themselves; The Use and Abuse of Initiative and Referendum, a Local Government Perspective, 19 Seattle U. L. Rev. 47, 48–49 (1995). 

  5. See Griffin, 552.