Menendez’s critics shouldn’t jump up and down just yet

APRIL 8, 2010
    With Sen. Robert Menendez, D-N.J., facing the possibility of a recall election, thanks to a surprising state court ruling, conservative activists have reason to celebrate. However, they shouldn’t get too excited, and not just because the ruling could be overturned on appeal. As the recall proponents must know, it is incredibly hard to get on the ballot.
    The Appellate Division ruled on March 16 that New Jersey’s secretary of state violated a state statute when she rejected a notice of intention by a committee to begin a petition drive for the senator’s recall. The ruling allowed Menendez’s foes to circulate the petitions.
    There is plenty of history on the subject of recalls. While there has never been a recall of senator, and other courts have specifically disallowed it, there are many other statewide elected officials throughout the country who are subject to a recall. And in the 102 years since Oregon became the first state to allow recalls of state-level officials, there have been only two statewide recalls. Both were of governors and resulted in a removal. North Dakota was the first to do it, ousting Gov. Lynn Frazier in 1921. The next one took place 82 years later, against California Gov. Gray Davis. There were plenty of attempts; before Davis, California governors were threatened with recalls 31 times. But no recall made it to the ballot.
    The reason is simple, and it is not that voters are enamored of their elected officials. It is just incredibly difficult to get enough signatures to qualify for the ballot.
    The Davis recall is the prime exception and a great point of instruction. It got on the ballot due to a number of particular circumstances, including the existence of opponents willing to dedicate millions of dollars to the effort and California’s history as a prodigious user of initiatives, which helped create a very well-developed signature-gathering industry in the state.
    Just as important were two relatively hidden reasons. One is that California’s governors face the lowest signature-gathering requirement of any elected officials in the country. Signatures equaling only 12 percent of votes cast in the previous election are needed to qualify the initiative. The other is that the 2002 election had the lowest proportional voter turnout in the state’s history. Therefore, to get the Davis recall on the ballot, its backers needed the signatures of fewer than 5 percent of the state’s eligible voters.
    New Jersey’s law is much different. The state requires the signatures of 25 percent of registered voters. This is a pretty standard requirement, but in practice it is very high. So, even though California has a population more than four times the size of New Jersey, the Davis recall required many fewer signatures — fewer than 900,000 — to get on the ballot. A Menendez recall needs close to 1.3 million signatures to qualify. And of course, nobody has pledged the millions of dollars that would be necessary to pay for the signature gatherers, not to mention the campaign.
    The recall proponents have one advantage that the California backers did not have — time. New Jersey has an exceptionally lenient clock for gathering the signatures — 320 days. California allowed only 160 days. And most states allow fewer. While this extra time should help the petitioners, they may need more than a few more months to get over the massive signature requirement.
    With an unprecedented court ruling, the opponents of Menendez have reason to crack open the bubbly. But, they shouldn’t get to excited. Even if the ruling stands, they have very high hurdle to climb until they can actually get their issue on the ballot.
    Joshua Spivak, an attorney, is a senior fellow at the Hugh L. Carey Center for Government Reform at Wagner College.