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Calvin L. Schaible, Published January 02 2011

Recall Plan B needed

I was disappointed to see that the North Dakota Supreme Court ruled against the people’s right to recall U.S. Sen. Kent Conrad, D-N.D. I doubt if a more “nationalist” opinion would have been written by a court full of Democratic appointments.

The court gave too much credence to the language change that had been recommended and rejected at the 1972 state Constitutional Convention. In the view of the court, this showed legislative intent. I confidently believe that few legislators and hardly any of the citizens, in 1978, even knew where this language came from, much less its intention. The court’s reliance on the 1972 convention rather than on the clear reading of the legislative testimony strikes me as odd. It leaves me with the impression that we had a ruling in search of an argument rather than an argument in search of a ruling.

Even if I could agree with the court on legislative intent, which I can’t, I cannot believe the court felt the public had been adequately informed about the effects of this measure. Not one word – zilch, zero, nada – was ever stated in legislative testimony or in the newspapers that the intention of the measure was to take away our right to recall a U.S. senator. The ruling appears to set a precedent that voters can be kept in the dark about the intent of a measure only to have it discovered after the fact, once the vote has taken place.

The court, by alluding to the U.S. Term Limits v. Thorton case, seems to indicate its fear of being overruled. The court fails to draw the distinction between selecting a candidate and disciplining an elected official. The U.S. Supreme Court came up with a troubling ruling that once a senator is elected, the senator becomes a “national” and not a state official. Four Republican appointees dissented with Justice Clarence Thomas writing the opinion. Justice Anthony Kennedy, also a Republican appointee, agreed with the majority but wrote a concurring opinion.

That was 1995; this is now 2011. The four Republican appointees (other than Kennedy) currently on the Supreme Court, I do not believe buy this “senator as national official” nonsense. Kennedy would be the swing vote if a recall case would reach the court.

After the tyrannical fashion in which Congress and the president have governed the past two years, I believe Kennedy would draw the distinction between selection and redress. I believe there is a good chance he would rule with the other four Republican appointees that the people retain the right to redress.

RecallND should now move to Plan B and change the language of the state Constitution. Perhaps someday, through patience and perseverance, as I sit in the nursing home eating pudding, I will read in The Forum that the U.S. Supreme Court upheld the people’s right to recall United States senators. It would be worth it. I would smile.

Schaible is a contributor to The Forum’s commentary pages.