On November 6, 2012, Chattanooga voters opted to amend their city charter by repealing one section and inserting new language having to do with recalling an elected official.
Or, put another way, Chattanooga voters simply made official what a state appellate court has already decided: that the requirements pertaining to validation of petition signatures have been set by the Legislature.
Several provisions in Chattanooga’s recall procedure were out of line with state law, but the one change that motivated this amendment—from requiring 50% of the number of voters in the last election to requiring 15% of registered voters—is one of two* pieces the state statute leaves flexible. Tenn. Code Ann. § 2-5-151 (j) carves out the ability for qualified municipalities to set their own numeric thresholds, if they enact or amend charters after June 1997.
Do you feel like you just went in a circle? Hold tight and get something to clench your teeth on, because this post is going to get wonk-y.
The process for a voter-initiated recall effort starts in the same way as for a voter-initiated ballot measure (referendum or initiative). At least one registered voter composes a question that voters would answer in a general election. That voter or group of voters then submits the question to their county election commission, who approves the wording.
Recall petitions have an extra requirement beyond the question: they must state at least one reason that the official should be removed.
The Chattanooga City Charter, until the recent amendment was approved, was not clear on the guidelines for creating the actual petition. If you followed its language and mapped it out as a process diagram, well…first you’re a nerd, and second, you’d see that it was a bit murky until the step in the process where the petition comes back to the election commission full of signatures.
But now, the petition process itself is very clear, and quite easy to follow. (My eight-year-old was able to navigate it, with a couple of hints.)
And you thought I was kidding about the swimlanes.
In summary, the items gained or clarified by opting to follow state law are:
- A petition question validation process (30 days) by the election commission, before signatures are gathered
- A chance (15 days) to amend a rejected petition and resubmit for election commission approval (15 days) before it gets circulated
- A specified time period (75 days) for gathering signatures
- Corrected the timing of when the question can be put on an election ballot
A couple of things went away when we replaced the former Chattanooga City Charter § 3.18:
- A chance to amend a rejected petition post-circulation (i.e., get more signatures)
- The ability to use the most recent election’s turnout as a basis for the signature threshold
But all that is only about creating, filing, circulating, and verifying the petition for recall. What is supposed to happen upon and after the election? For that matter, what is the very nature of the election?
After doing a bit of reading, it seems quite clear to me that the election that gets triggered by a certified petition is not one in which candidates vie for office. Well, not technically.
Some states do hold the special election at the same time as the recall election, but it is specified that the recall election itself is simply the question “Shall [name of incumbent] be recalled?” or something to that effect. Voters choose between options “For the recall” and “Against the recall.” Then, on the same ballot, they vote on which candidate they would like to see fill the office.
Holding these elections at the same time no doubt saves money, but there are a couple of inherent problems with this approach. First, will the best candidates sign up to run in an election where they’re not even sure if the recall will pass? The pragmatic person might rather wait for that step to be decided, and then run. (It’s fair to argue that this could be gauged by measuring petition support.)
Second, what about the following scenario? The recall question and special election are on the same ballot. A majority votes for the recall; but a majority also votes for the well-known incumbent, whose name recognition conjures up a knee-jerk reaction among voters who really are paying that little attention. (Don’t make me list examples.)
What then? Or what if the recall fails, but a challenger ends up with the most votes? It could happen.
It seems like the clearest way to express the will of the people is to hold the recall election first, and certify the results. If the recall passes, then the incumbent is removed (heads-up, council chairperson, this would be your chance to serve as interim mayor), and can opt-out or join the waiting throng of would-be replacements in a special election. If the recall fails, then all those others don’t need to bother; the general electorate effectively will have told the petitioners to sit down and be quiet.
But which is it? The sense during the recall effort that sparked this month’s referendum was that we would see candidates on the very next ballot. In contrast, referendum law seems to indicate that voters’ first response to a recall petition is to decide en masse whether it should occur.
In a way, the mayor’s lawsuit that successfully stopped the election helped fend off both an answer to this question and a very confusing mess.
Since neither the Charter nor Tennessee law is abundantly clear**, I guess we’ll have to try out the new process to find out—er, I mean, when and only if one of our elected officials demonstrates that there are specific grounds for removal. Until then, the election part of a recall election remains as foggy as the petition part was before.
*The other is the number of days allowed for petition circulation. The law has 75 days, but cities can change this.
**This statement only means that I have not been able to determine the exact process. If someone knows where it’s clearly laid out, please point to that information.