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Voters Still Have a Right to Choose Officials for Whatever Reason They Want:

David Habecker, town trustee of Estes Park, Colorado, was recalled by the voters "in a recall election dominated by the issue of whether those voters wished to continue to be represented by a trustee who had refused to stand and recite the Pledge of Allegiance at trustee meetings." So, of course, he sued, claiming that his removal from office violated his rights under the First Amendment and the Religious Test Clause.

Last week, the federal district court rejected his claim (Habecker v. Town of Estes Park, 2006 WL 2709589 (D. Colo.)), concluding that the recall proponents and the voters were acting as private citizens rather than as state actors, and thus weren't bound by the Constitution: They were free to throw an official out of office for whatever reason they pleased. As importantly, the court implicitly concluded that judges were not empowered to keep in office someone whom the voters had thrown out. Good decision.

Related Posts (on one page):

  1. Elected Official's Suit Over Pledge of Allegiance, and Over His Having Been Recalled Because He Wouldn't Say It:
  2. Voters Still Have a Right to Choose Officials for Whatever Reason They Want:
Cornellian (mail):
I'll just quibble a tiny bit with the "implicit conclusion" that "judges were not empowered to keep in office someone whom the voters had thrown out." I would qualify that by saying "someone whom the voters had lawfully thrown out." A vote held tomorrow to remove GW Bush from office wouldn't be lawful and even if a majority voted to remove him, that wouldn't remove him from office.
9.27.2006 1:59pm
Redman:
Could the voters remove someone because of sex, race, or national origin?
9.27.2006 2:00pm
PatHMV (mail) (www):
Redman: Yes.
9.27.2006 2:00pm
TaxLawyer:
Good decision, yes. But bad town. Apparently the town is full of people "of zeal, well-meaning but without understanding."
9.27.2006 2:11pm
Alex R:
I recall when members of the California State Assembly attempted to expel 1960s-era activist Tom Hayden, who had been properly elected by the voters of his district, on the grounds of his past support for North Vietnam, or something like that.

The only source on this I could find is Hayden's own website:
In 1982 and 1984, my campaigns for the Assembly were opposed by a right-wing coalition spearheaded by Republican superpatriots. They tried in 1984 to go to court to expel me from the Legislature for treason; the Court of Appeals threw out the case as "frivolous". But in June 1986, Orange County Assemblyman Gil Ferguson moved that I be expelled from the Assembly. After rancorous debate, the Assembly voted not to expel me, mostly on partisan lines.
The vote failed, but had it succeeded would this not violate the basic principle that judges or legislators should not be able to override the lawfully expressed wishes of the electorate? Presumably the rules of the legislature allowed for such an expulsion, but had he been expelled, would he have had a case in court that these rules had been unconstitutionally applied?
9.27.2006 2:20pm
Kim Scarborough (mail) (www):
Powell v. McCormack is also worthy of note here.
9.27.2006 2:26pm
AF:
[Had Hayden] been expelled, would he have had a case in court that these rules had been unconstitutionally applied?

I doubt it, but it would depend on what the rules of the legislature were. If the rules allowed expulsion for any reason, then I doubt there'd be a problem with expelling someone for their views (race or religion might be a different issue). But if it had to be a crime or misdemeanor and he was expelled for legal conduct, he might have an argument that the assembly's abuse of the rules amounted to a First/Fourteenth Amendment violation.

Note that assembly members are state actors. Voters aren't so there's no Fourteenth Amendment claim against them. Note also that these are state not federal offices. Federal impeachment is an unreviewable political question.
9.27.2006 2:32pm
Eugene Volokh (www):
Alex R: The U.S. Constitution specifically provides that legislators may sometimes override the lawfully expressed wishes of the electorate. State constitutions might do the same, subject, as Kim Scarborough points out, to Powell and Bond v. Floyd. It's not clear to me what constraints there ought to be on the exercise of such power. But such power is at least expressly constitutionally supported, and sanctioned by American traditions. Not so for any power on the judges' part to leave in office someone whom the voters have kicked out of office.
9.27.2006 2:33pm
AF:
I revise my comments in accordance with Bond v. Floyd (which seems to say that a state legislature violates the First Amendment by expelling a member for his speech, even if the expulsion is in accordance with state law).
9.27.2006 3:06pm
Jake (Guest):
When voters vote, they are invoking the powers of the state to determine what action the government will take. Is it really less plausible to call them state actors than it is to call defense counsel a state actor under the Batson line of cases?
9.27.2006 3:22pm
A.S.:
My vote against Kerry was directly related to the things he said in his campaign. First Amendment violation?
9.27.2006 3:36pm
Duncan Frissell (mail):
Apparently the town is full of people "of zeal, well-meaning but without understanding."

Or full of people who believe that those who swear allegiance to their country are less likely to betray it than those who refuse to do so since those are implicitly reserving their right to ally themselves with some other idea or institution.

Many human societies have defined membership by the use of oaths and treated oath breakers as the worst violators.

Also, since oaths are supported by the threat of divine punishment, many believe oaths are more binding than mere political promises.
9.27.2006 4:08pm
SeaLawyer:

Good decision, yes. But bad town. Apparently the town is full of people "of zeal, well-meaning but without understanding."


I say that this is a great town. The voters had a very clear understanding.
9.27.2006 4:24pm
Houston Lawyer:
What, no motion to dissolve the people and appoint a new one?
9.27.2006 4:29pm
elChato (mail):
Is it really less plausible to call them state actors than it is to call defense counsel a state actor under the Batson line of cases?

It's pretty hard to get less plausible than the state-action holding in McCollum.
9.27.2006 4:32pm
TaxLawyer:
Or full of people who believe that those who swear allegiance to their country are less likely to betray it than those who refuse to do so since those are implicitly reserving their right to ally themselves with some other idea or institution.
Many human societies have defined membership by the use of oaths and treated oath breakers as the worst violators.


But the Pledge of Allegiance is no oath. If town ordinances or state statutes require an oath for this office (town trustee), than I assume the officeholder in fact took that oath upon taking office. He need not take it again.

I am familiar with the idea that many societies treat oath breaking as a serious offense (indeed, the Jewish holiday of yom kippur begins with a plea that we be absolved of any oaths which we might make and break in the year to come, exactly because this is regarded as a grave offense). But the Pledge itself is not an oath, and refusing to recite it can't, in any reasonably way, be construed as a violation of an oath of office already taken.

The idea that recitation of the pledge is an index of good citizenship is risible. Anyone who's ever seen a public high school classroom where the delinquents join everyone else in mouthing the words like so many little robots every morning, can't really believe that. And I'm not suggesting that no one recites it with conviction and serious reflection on its meaning. I'd even be willing to concede that most who rectie the pledge do so in exactly that way. But you can't tell the serious ones from those who are just going through the motions.


Also, since oaths are supported by the threat of divine punishment, many believe oaths are more binding than mere political promises


Of course, our founding fathers weren't necessarily among them, as the Constitution specifically permits office holders to affirm rather than swear. The "so help me God" coda that we're so familiar with is not a required part of any federal oath, nor could it be, in view of Art. VI s. 3.

This comment of yours is also something of a non-sequitur, since the Pledge of Allegiance isn't, in any event, an oath.
9.27.2006 6:50pm
Bored Lawyer:
IMO, a more fundamental reason why the decision is correct is that a Court should not be inquiring into and judging the motivations of voters. If the decision had gone the other way, then the Pandora's box would be open for the judiciary to second guess the voters. )"They did not vote for Fred because he's fat. That's discrimination! Illegitimate.")

Perhaps this is another application of the political question doctrine. Under a republican system of government, the people are the supreme power -- above the three branches of govt. The primary way they exercise that power is voting. The voters have absolute discretion to vote for whom they wish for whatever reason they wish, good, bad or indifferent. (In fact, there is an evidentiary privilege not to reveal for whom one voted.)
9.27.2006 7:26pm
neurodoc:
AS, we do not have the opportunity to cast a vote against any candidate, exercising in effect a "blackball," though I often wish we did. The closest you could come to voting againstKerry was to vote for Bush or another candidate other than Kerry. So, not a First Amendment issue in any event, but even more not so, if that is possible, given that the effect of your vote for someone other than Kerry was only an indirect one, unlike the direct effect of those votes to recall the Estes Park trustee.
9.27.2006 7:45pm
A.S.:
neurodoc, why isn't voting FOR someone based on their statements just as much a First Amendment violation as voting AGAINST someone based on their statements?
9.27.2006 7:58pm
Truesilver (mail):
From what I understand of the cases cited here, and from the general tenor of my understanding of the Popular Sovreignty ideas that are more-or-less the basis for the US system, the People-as-Voters are not really very tightly bound by the constitutional restrictions on state action. A vote is necessarily based on things that the government itself cannot consider. Opinions ans speech are all that the Voter is able to work with. He cannot directly invade the future Official's mind. But the Consititution sets an orderly way in which the Voters shall Elect their officials. The actual reasons for the votes are irrelevant. The People are Sovereign under the Constitutional Republic, and are not bound by the Constitution in any way they choose not to be, expressing that in amendments altering voting rights. All other provisions apply only as restrictions explicitly on the Government. Any other interpretation, it seems to me, would violate the history of the document, and lead to the very issue raised by Bored Lawyer.
9.27.2006 10:02pm
Cornellian (mail):
What, no motion to dissolve the people and appoint a new one?

No, the law expects you will avail yourself of the self-help remedy of removing them from your district via gerrymandering.
9.28.2006 12:52am
Thorley Winston (mail) (www):
Or full of people who believe that those who swear allegiance to their country are less likely to betray it than those who refuse to do so since those are implicitly reserving their right to ally themselves with some other idea or institution.


Perhaps but from what I can tell he refused to recite the Pledge because it includes the words "under God" and he considered himself agnostic. After first reciting the Pledge sans "under God," he decided to make a fuss about it vowing to remain seated unless and until the Pledge was changed to suit his personal making claming that it violated the "separation of church and state." Apparently this fellow had also been involved with efforts to strip the YMCA of its tax-exempt status (which may or may not be a good idea).

It seems to me then that the reason he got recalled is probably because the way that he handled this situation came off making him look like the Michael Newdow sort of militant atheist out to strip anything remotely religious from the public sphere. Whether you agree with it or not on the merits, the fact is that it's a position that pretty much on the ideological fringes of mainstream society and when you put yourself in the middle of that sort of controversy, people are going to have a bad reaction and wonder if you're really the sort of person they want representing them or if you're just there to "make a point."
9.28.2006 2:32pm
Bryan DB:
A.S.
Unless you are, in your entirety, the government, I don't see how your hypothetical makes any sense at all. You, yourself, are the state?
9.28.2006 3:14pm
Russ (mail):
I'm stunned. Judges deferred to the voters carrying out a legal recall! What's next, people actually going to jail instead of therapy for committing crimes?
9.28.2006 6:33pm
John (mail):
Some of the comments here are quite puzzling. Here is what Americans can base their vote on, lawfully:

1. the color of a candidate's skin.
2. the color of a candidate's dog.
3. whether the candidate's spouse is a nose picker.
4. whether the candidate says stuff that is good. Or bad.

Need I go on? The concept here is that WE ARE A FREE PEOPLE. We can elect people for whatever reason occurs to us in the booth. And we can, where the law allows candidates to be recalled, vote in the same way. We are free.
9.28.2006 6:39pm