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Associated Press, Published October 20 2010

Conrad foes press ND Supreme Court for recall

BISMARCK, N.D. (AP) — North Dakota's Supreme Court will consider whether voters’ power to recall an elected official, which has been used against county sheriffs, state legislators and a governor, may also be utilized against U.S. Sen. Kent Conrad.

The justices prepared to hear arguments Wednesday afternoon about the case, which arose when Secretary of State Al Jaeger declined to approve a petition to recall the incumbent Democrat.

Jaeger's refusal came after Attorney General Wayne Stenehjem concluded, in a legal opinion requested by Fargo state Rep. Blair Thoreson, that the state constitution did not allow recalls of members of Congress. Jaeger, Stenehjem and Thoreson are Republicans.

Recall ND, a nonprofit organization started by Joseph Wells Jr. of Fargo, then filed a petition with the Supreme Court, asking the justices to order Jaeger to issue the recall petition.

A recall gives voters a chance to oust an elected official before his or her term is up. To force a recall election for Conrad, who is up for re-election in 2012, supporters of the idea would need to gather the signatures of at least 78,923 North Dakota voters. The total represents one-quarter of the number of people who voted for North Dakota governor in 2008.

A similar case is pending in New Jersey, where a group of voters is seeking to recall Democratic U.S. Sen. Robert Menendez. They sued New Jersey Secretary of State Nina Wells when she declined to accept a notice that the group wanted to recall Menendez. New Jersey's Supreme Court heard arguments in May.

The North Dakota Constitution says “certain elected officials” are subject to recall, including “any elected official of the state, of any county or of any legislative or county commissioner district.”

If the provision's authors had wanted to make every North Dakota elected official subject to recall, they would have said so, Douglas Bahr, the state's solicitor general, argued in a court filing. The phrase “elected official of the state” refers to state and not federal officeholders, he said.

The state constitution once authorized recalls of North Dakota's U.S. senators and House members, but North Dakota voters agreed to remove the provision in 1978 as part of a package of constitutional changes, Bahr wrote.

Recall ND, which is represented by Minot attorney Jeffrey Sheets and Andrew Schlafly, of Far Hills, N.J., argue that the term “elected official of the state” includes North Dakota's members of Congress.

“It is inevitable ... that a future U.S. senator of any state will, for medical, emotional, personal, legal or ideological reasons, cease to represent his constituents and fail to do his job,” the attorneys wrote in a court filing. “If and when that happens, North Dakotans can ensure continuation of their rightful representation by exercising their constitutional power of recall.”

No member of Congress has ever been recalled, and the U.S. Supreme Court has never directly addressed the issue of whether recalls are allowed, according to a March report by the Congressional Research Service.

The drafters of the U.S. Constitution considered the idea but did not include the right of recall in the version of the document that was presented to the states for ratification, the report says.

“The specific drafting and ratifying debates indicate an express understanding of the framers and ratifiers that no right or power to recall a senator or representative in Congress exists under the Constitution,” says the report, written by legislative attorney Jack Maskell.

Sheets and Schlafly dispute that in a court filing, pointing to a letter from George Washington, written shortly after the Constitutional Convention in 1787, that referred to the recall of members of Congress. Whenever the Constitution's power “is executed contrary to (the people's) interest, or not agreeable to their wishes, their servants can, and undoubtedly will be, recalled,” the letter says.

North Dakota's most famous recall election was in October 1921, when voters threw Gov. Lynn Frazier, Attorney General William Lemke and John Hagan, the state commissioner of agriculture and labor, out of office amid disillusionment over a farm relief program advocated by the Nonpartisan League, an agrarian movement that established a state-owned bank and flour mill. The three officials made up the state Industrial Commission, which was the bank's board of directors.

Frazier was the nation's only governor to be recalled until October 2003, when California voters ousted Democratic Gov. Gray Davis and installed Republican Arnold Schwarzenegger as his successor.