Wisconsin Attorney General Opinions

Opinion # OAG 54-79

3 May 1979.

Elections;

If the Elections Board is presented with a
valid petition for the recall of a member of
Congress pursuant to Wisconsin Constitution
Article XIII, Section 12, and Section 9.10,
Stats., it must initiate the recall election
unless otherwise ordered by a court.

GERALD J. FERWERDA, Executive Secretary
State Elections Board

You request my opinion on the question of
whether Wisconsin Constitution Article XIII,
Section 12 or Section 9.10, Stats., should be
applied to provide for recall of a member of
the United States Senate.

Your question is occasioned by the
possibility that petitions for such a recall
may be filed with the Elections Board.

68 OAG 140 141 142 143 144 145 146 147 148 END

Because of your concern regarding the
validity of Wisconsin's recall provisions
under the United States Constitution you feel
it necessary for the Board to determine
whether it should carry out its apparent
responsibilities under Section 9.10, Stats.

Wisconsin Constitution Article XIII,
Section 12, approved by vote of the
electorate in November, 1926, provides:

The qualified electors of the state or
of any county or of any congressional,
judicial or legislative district may
petition for the recall of any elective
officer after the first year of the term
for which he was elected, by filing a
petition with the officer with whom the
petition for nomination to such office
in the primary election is filed,
demanding the recall of such officer.

Such petition shall be signed by
electors equal in number to at least
twenty-five per cent of the vote cast
for the office of governor at the last
preceding election, in the state, county
or district from which such officer is
to be recalled.

The officer with whom such petition is
filed shall call a special election to
be held not less than forty nor more
than forty-five days from the filing of
such petition.

The officer against whom such petition
has been filed shall continue to perform
the duties of his office until the
result of such special election shall
have been officially declared.

Other candidates for such office may be
nominated in the manner as is provided
by law in primary elections.

The candidate who shall receive the
highest number of votes shall be deemed
elected for the remainder of the term.

The name of the candidate against whom
the recall petition is filed shall go on
the ticket unless he resigns within ten
days after the filing of the petition.

After one such petition and special
election, no further recall petition
shall be filed against the same officer
during the term for which he was
elected.

This article shall be self-executing
and all of its provisions shall
be treated as mandatory.

Laws may be enacted to facilitate its
operation, but no law shall be enacted
to hamper, restrict or impair the
right of recall.

Section 9.10, Stats., was enacted "to
facilitate the operation of Article XIII,
Section 12, of the constitution and to extend
the same rights to electors of cities,
villages, towns and school districts."
Section 9.10 (7), Stats., as amended by
Chapter 403, Laws of 1977.

68 OAG 140 141 142 143 144 145 146 147 148 END

You express the belief that both Wisconsin
Constitution Article XIII, Section 12, and
Section 9.10, Stats., would permit the use of
the recall procedure for congressional
offices.

I agree, since the language "any elective
officer" is broad enough to encompass
congressional officers, and I am aware of
nothing that would indicate otherwise.

Indeed, prior to the adoption of the
amendment in November, 1926, some critics
charged that inclusion of congressmen raised
federal constitutional questions.

Since no federal constitutional issues would
be raised if the recall were not to apply to
federal elective officers, it appears that in
the mind of some contemporaries of the
amendment it was meant to include such
officers.

It may be observed that there are two basic
elements to the recall procedure under
Wisconsin law.

First is the referendum on the question of
removal of a named incumbent.

Second is an election to choose his successor
in the event of such removal.

Both of these elements raise constitutional
questions.

Regarding the first element, there is some
question whether the United States
Constitution vests in each house exclusively
the power to remove members of Congress.

As to the second element, the question is
whether such an election is inconsistent with
the scheme of federal regulation of
congressional elections.

Under the supremacy clause, U.S. Constitution
Article VI, Clause 2, any state law
inconsistent with the Federal Constitution or
with validly enacted federal legislation must
fall to the extent of its inconsistency.

The provision of the United States
Constitution pertinent to the question of
removal is Article I, Section 5, Clause 2,
which provides:

Each house may determine the rules of its
proceedings, punish its members for
disorderly behavior, and, with the
concurrence of two-thirds,
expel a member.

Does this power to expel so lodged in each
house constitute the only method of removing
a sitting member under our constitutional
system? No definitive answer to this question
has been given by competent authority.

It has been recognized, however, that in
general the right to expel extends to those
cases where the action of the offending
member is such that his house considers it
inconsistent with the trust and duty of
continued membership.

In re Chapman, 166 U.S. 669 (1897).

Powell v. McCormack, 395 U.S. 486 (1969), is
instructive in determining whether the
expulsion power granted to each house in
Article I, Section 5, Clause 2 should be
viewed as the sole (constitutional) means of
removing a sitting member of Congress.

68 OAG 140 141 142 143 144 145 146 147 148 END

One of the issues to be decided in Powell
concerned Article I, Section 5, Clause 1,
which provides in pertinent part:

   "Each house shall be the judge
    of the elections, returns
    and qualifications of
    its own members . . ."

The question was whether a house of
Congress could prevent a member-elect
from taking his seat because it did
not deem him qualified.

The Court held that Congress may only judge
whether a member-elect meets the
qualifications enumerated in the
Constitution, such as those concerning age
and residency, but could not add to them.

Thus Congress has no power to exclude a
member even on grounds of that member's
immoral or criminal conduct.

In reaching this conclusion the Court traced
the history of the legislative power of
exclusion from mid-sixteenth century England
through the constitutional convention to the
present.

In demonstrating the framers' intent that the
qualifications for membership in Congress be
fixed in the Constitution and not be
alterable by the Legislature, the Court
quoted from Hamilton's speech before
the New York convention:

   The true principle of a republic is
   that the people should choose whom
   they please to govern them.

   Representation is imperfect in proportion
   as the current of popular favor is checked.

   This great source of free government,
   popular election, should be perfectly pure,
   and the most unbounded liberty allowed.

2 Debates on the Federal Constitution 257
(J. Elliot ed. 1876), quoted in Powell,
395 U.S. at 540-541.

The Court laid particular stress on the
principle of protecting popular will
in the selection of representatives
from legislative obstacles:

   Had the intent of the Framers emerged
   from these materials with less clarity,
   we would nevertheless have been compelled
   to resolve any ambiguity in favor of a
   narrow construction of the scope of
   Congress'power to exclude members-elect.

   A fundamental principle of our
   representative democracy is,
   in Hamilton's words, "that
   the people should choose
   whom they please to
   govern them."

Id. at 547.

Powell is not directly in point, since it
deals with the exclusion power under
Article I, Section 5, Clause 1,
rather than with the expulsion power
under Article I, Section 5, Clause 2.

68 OAG 140 141 142 143 144 145 146 147 148 END

Therefore, it is not conclusive in
determining whether the power of removal
rests solely with the Congress.

But it would be unwise to ignore one of the
chief underpinnings of that case, namely,
that the will of the people in selecting
their representatives is not to be frustrated
in the absence of clear and specific
authority for doing so.

On the other hand, there is considerable
evidence that the framers intended to
contribute to the stability of the federal
government by structuring one house, the
Senate, to be more insulated from the
potentially volatile popular will.

The Wisconsin Supreme Court has said that the
intent was:

  "To secure a house of Congress
   not so remote from the people as to be
   unaccountable to them, and yet distant
   enough to be able to withstand popular
   outbreaks of passion and vindictiveness
   and assaults upon the rights of the citizen."

State ex rel. Van
Alstine v. Frear, 142 Wis. 320, 345 (1910).

See also James Madison's eloquent discourse
on this subject in The Federalist, Nos. 62
and 63, pp. 376-390 (Mentor ed., 1961).
Today, however, the Senate is less insulated
from the popular will on account of the
seventeenth amendment providing for direct
popular election of Senators.

Removal of a member of Congress under
Wisconsin's recall procedure is a most direct
expression of the people's will in the
selection of their representatives.

Removal by recall does not on its face
conflict with Congress' power of expulsion
under Article I, Section 5, Clause 2.

Nor would the effect of recall necessarily
thwart the operation of that clause.

If removal by recall is deemed to be in
conflict with the expulsion power of
Congress, it would have to be because
the framers intended expulsion by two-thirds
of a house to be the sole method of removing
a sitting member.

It would not be appropriate for me, in an
attempt to discern the framers' intent on
this matter, to undertake here the same type
of exhaustive historical analysis conducted
by the Court in Powell.

For the present, it is sufficient to note the
Court's admonition "to resolve any ambiguity
in favor of a narrow construction of the
scope of Congress' power" when it is weighed
against the people's right to "choose whom
they please to govern them."

As noted above, the Wisconsin recall
provisions, besides being a method of
removal, also involve an election.

68 OAG 140 141 142 143 144 145 146 147 148 END

The holding of congressional elections is
subject to U.S. Constitution Article I,
Section 4, Clause 1, which provides:

The times, places and manner of holding
elections for senators and
representatives, shall be prescribed in
each state by the legislature thereof;
but the Congress may at any time by law
make or alter such regulations, except
as to the places of chusing Senators.

Thus, Congress has the power to regulate
the time and manner of holding
senatorial elections.

Under the supremacy clause, state attempts to
regulate such elections will survive in the
face of congressional regulation

(a) if and to the extent that the two are
    consistent and do not contravene one
    another,

    and

(b) if Congress has not evinced an intent to
    occupy the field so that no state
    regulation will be allowed regardless
    of whether Congress has passed
    inconsistent legislation.

Congress has regulated senatorial
elections by law.

The pertinent provisions are
2 U.S.C. Sections 1 and 7.

SECTION 1.

Time for election of Senators At the
regular election held in any State next
preceding the expiration of the term for
which any Senator was elected to
represent such State in Congress, at
which election a Representative to
Congress is regularly by law to be
chosen, a United States Senator from
said State shall be elected by the
people thereof for the term commencing
on the 3d day of January next
thereafter.

It will be noted that Section 1 deals with
regularly held congressional elections.

There is nothing on the face of the statute
to suggest that a provision for a special
recall election would interfere with the
congressional scheme for regulating the
regular elections.

SECTION 7.

Time of election

The Tuesday next after the 1st Monday in
November, in every even numbered year,
is established as the day for the
election, in each of the States and
Territories of the United States, of
Representatives and Delegates to the
Congress commencing on the 3d day of
January next thereafter.

This section shall not apply to any
State that has not yet changed its day
of election, and whose constitution must
be amended in order to effect a change
in the day of the election of State
officers in said State.

68 OAG 140 141 142 143 144 145 146 147 148 END

Under Section 1 standing alone, the time for
the regular election of senators was tied to
the time a state had established for the
biennial election of representatives.

Section 7, fixing a uniform date for such
elections, was later passed to eliminate the
problems resulting from the election of
members occurring at different times in
different states.

Ex parte Yarbrough, 110 U.S. 652, 661 (1884).

It is relatively clear, therefore, that
Section 7 also regulates the
regularly held election.

It does not on its face indicate any
intention on the part of Congress to
prohibit special recall elections.

Thus far it appears that Wisconsin's recall
provisions are wholly consistent with
Congress' statutory scheme for regulating the
times and manner of elections as evidenced by
2 U.S.C. Sections 1 and 7, above. For nothing
in connection with the recall would in any
way impinge upon the regular election.

If our recall provisions are to be deemed
preempted, then, it would have to be because
Congress intended to occupy the field, in
effect precluding all state regulation in the
area irrespective of consistency.

It will not be presumed that a federal
statute was intended to supersede the
exercise of the power of the state
unless there is a clear manifestation
of intention to do so.

The exercise of federal supremacy
is not lightly to be presumed.

Schwartz v. Texas,
344 U.S. 199, 202-203 (1952),

quoted in

New York State Department
of Social Services v. Dublino,
413 U.S. 405 (1973).

I am not aware of any clear manifestation of
Congress' intent to preempt otherwise
compatible state regulation in this area.

Therefore, I cannot state that our recall
provisions would be declared unconstitutional
on grounds of federal preemption.

In the foregoing discussion I have attempted
neither a resolution nor a comprehensive
analysis of the constitutional issue.

Enough has been said, however, to show that
the question of constitutionality is one
that is arguable and open to debate.

The Wisconsin Supreme Court has provided
guidance to administrative bodies called upon
to perform their ministerial duties under
circumstances raising doubt as to the
constitutional validity of the result.

In
State ex rel. Sullivan v. Hauerwas,
254 Wis. 336 (1949), the issue was
similar to the one here presented.

Sullivan was a candidate for the
office of circuit judge.

Under Wisconsin Constitution Article VII,
Section 10, to be eligible for that office
a person must have attained the age of
twenty-five years at the time of his
election.

68 OAG 140 141 142 143 144 145 146 147 148 END

After Sullivan had filed his otherwise
adequate nomination papers with the
Milwaukee County Board of Election
Commissioners, he was informed that his
name would not be placed on the ballot
because he admittedly was not old enough.

The circuit court for Milwaukee County
granted Sullivan's petition for a writ
of mandamus compelling the Board to
place his name on the ballot.

The supreme court held that the
circuit court did not abuse its
discretion in issuing the writ.

The court noted that the Board was:

An administrative body and may perform
only those functions delegated to it by
the Legislature.

It has no authority to make findings of
fact where the statutes are silent, and
it has no authority to determine
questions of law.

The nomination papers were admittedly
proper in every respect and the relator
has a legal right to have his name
appear upon the primary judicial ballot
even though he may not be eligible for
the office if elected.

254 Wis. at 340.

The position of the Wisconsin Supreme Court
on this subject was most recently explained
in State ex rel. Althouse v. Madison, 79
Wis.2d 97, 109, 112, 255 N.W.2d 449 (1977):

It is true that, in its [the court's]
discussion of State ex rel. Sullivan v.
Hauerwas . . . it pointed out that it
would have been proper to deny a
petition for a writ of mandamus to place
a candidate of doubtful age eligibility
on the ballot had that question been
previously decided adversely to the
petitioner; but it also recognized that,
where no prior adjudication had taken
place, mandamus was appropriate even
though a substantial constitutional
doubt was readily apparent.

We have already referred to Sullivan, in
which this court held that, although a
question . . of substantial
constitutionality of the proposed action
is raised, mandamus will lie unless
there has been a prior and explicit
adjudication of unconstitutionality on
the very subject matter.

In other words, where the
unconstitutionality is arguable and
open to debate, mandamus will
nevertheless lie to compel performance.

In
State ex rel. Martin v. Zimmerman,
233 Wis. 16,
288 N.W. 454 (1939),
the secretary of state refused to publish a
bill because of his belief in its
unconstitutionality.

68 OAG 140 141 142 143 144 145 146 147 148 END

This court rejected his defense and stated:

It is a thoroughly well-established
principle of law that no person may
raise the constitutionality of an
act of the legislature who is not
in his official capacity or
personally affected by it.

Accordingly, in the event petitions for the
recall of a United States senator are
presented to the Elections Board, you should
proceed to carry out your responsibilities
under Wisconsin Constitution Article XIII,
Section 12, and Section 9.10, Stats.,
unless and until directed otherwise
by a court of law.

BCL:GS

68 OAG 140 141 142 143 144 145 146 147 148 END