Kestenbaum on Recall Law: Unconstitutional

Washtenaw County clerk Larry Kestenbaum has announced that he does not think a new state law on recall elections is constitutional. The law, which was approved last year as Act 417 of 2012, changes the standards that a board of election commissioners must apply to recall ballot language – by adding a requirement that the reasons be factual.

Kestenbaum, who is one member of the three-member board of election commissioners for Washtenaw County, made the announcement in an email sent early on Aug. 1, 2013 to the other two members of the board: Donald E. Shelton, chief judge of the Washtenaw County Trial Court; and Catherine McClary, county treasurer. [.pdf of Kestenbaum's Aug. 1, 2013 email]

Kestenbaum’s email comes in the context of a scheduled hearing today, Aug. 1, to review the proposed ballot language for a proposed recall for six Ann Arbor Public Schools trustees. That hearing is scheduled for 1 p.m. today at the county boardroom, 220 N. Main Street in Ann Arbor. If the board of election commissioners deems the language to fall short of the legal standard, then petitions asking for a recall can’t be circulated.

In his email, Kestenbaum argues that the factual-standard requirement is unconstitutional by citing the following passage of the Michigan constitution, and calling out the final sentence for emphasis:

Laws shall be enacted to provide for the recall of all elective officers except judges of courts of record upon petition of electors equal in number to 25 percent of the number of persons voting in the last preceding election for the office of governor in the electoral district of the officer sought to be recalled. The sufficiency of any statement of reasons or grounds procedurally required shall be a political rather than a judicial question.

Kestenbaum concludes that: “The sufficiency of reasons for recall is a political question. It is specifically not a judicial question. If the election commission and the courts can determine the truth or falsity of reasons for recall, then the power to judge these questions has been removed from the people.”

In his email, Kestenbaum states that during the review of the proposed ballot language for the AAPS trustees today, he will apply the standard of clarity. That’s the other part of the standard, which was also part of the law before Act 417 of 2012 was passed.

About the new standard, however, Kestenbaum states: “I respectfully decline to review any recall language for ‘factuality.’”

Kestenbaum’s email also states that he would oppose any attempt during the board of election commissioners meeting to weigh the question of whether the AAPS trustees recall language is “factual.”