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):
- Elected Official's Suit Over Pledge of Allegiance, and Over His Having Been Recalled Because He Wouldn't Say It:
- Voters Still Have a Right to Choose Officials for Whatever Reason They Want:
The only source on this I could find is Hayden's own website: 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?
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.
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.
I say that this is a great town. The voters had a very clear understanding.
It's pretty hard to get less plausible than the state-action holding in McCollum.
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.
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.
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.)
No, the law expects you will avail yourself of the self-help remedy of removing them from your district via gerrymandering.
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.”
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?
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.