Probably most recall efforts against public officeholders in Colorado have been as unwarranted as they have been unsuccessful. Ideally, a petition drive to launch a recall election is a fitting response only to credible evidence of bona fide malfeasance in office. A recall is not intended merely to stage an early election against a member of the opposing party — the reality behind all too many recalls.
Yet, the very fact that recalls seldom succeed suggests the voting public is exercising restraint and sound judgment. It also suggests there’s no need for an attempt afoot in the Legislature to curb the recall process. Folded into a broader bill making various tweaks to the state’s election process, the recall provision would make recalls harder, ironically, as the rest of the bill purports to make voting easier.
Although Senate Bill 250’s sponsors might say otherwise, the effort is inevitably a partisan one. Democrats hold most of the cards at the State Capitol these days, and they’re no doubt tired of minority Republicans overplaying their hole card, the recall, against wide-ranging members of the ruling party from the governor on down. Democrats no doubt view it as political stunt-craft — harassment — rather than democracy in action.
It’s easy to understand the skepticism about recalls when so few of them seem to have much of a chance from the start, and so many appear orchestrated. Attempts to recall Gov. Jared Polis have become almost an annual ritual — the third in a row is expected to kick off soon — resembling a political ritual rather than a concerted effort to remove an officeholder.
Nonetheless, the recall is a fundamental tool of the democratic process even if it ought to be invoked seldom. It represents a fail-safe, a last line of defense when the occupant of an elective office should indeed be shown the door before the next scheduled election.
Especially in that light, SB 250’s additional strictures on recalls can’t be justified. Some of those strictures seem innocuous but are still unnecessary and add up to more hassle that puts a chill on the process.
The bill would:
• Require recall petition circulators to be licensed and wear badges that explain whether the circulator is a volunteer or a paid solicitor;
• Require petitions to disclose the estimated cost to taxpayers of conducting the recall election;
• Prohibit a recall against any officeholder whose term of office will be complete in six months or less;
• Require recall petitions to include a note defending the target of the recall from the charges leveled by the recall campaign.
More problematic in terms of enforcement are changes in the current recall law that essentially require recall petition circulators to tell the truth, and would bar false statements on the recall petition. At issue here isn’t the expectation that a recall campaign be truthful — obviously, a good thing — but rather the implication that a public entity would have to determine if petitions and circulators are telling the truth.
Jeff Roberts of the Colorado Freedom of Information Coalition told our news affiliate Colorado Politics that the changes pose looming legal problems. The state constitution and state law prohibit review of recall petition statements for a statewide office. Colorado Politics noted the state election manual is explicit on the point.
It states that “although it may not have profane or false statements, under statute and constitution, the statement is not subject to review. Thus, aside from ensuring the statement meets the 200-word limit, the (elections division) should consult the county attorney before taking any other action regarding the content of the statement.” Otherwise, free speech is imperiled.
Last year’s unsuccessful attempt to recall Polis, for example, was premised in part on allegations he abused his emergency powers under Colorado’s Disaster Emergency Act, that he “overstepped his powers and infringed upon the role of the legislative branch,” and that he “explicitly discriminated against houses of worship” when imposing COVID-19 restrictions.
Those assertions are largely a matter of opinion — and have been the subject of much debate. But here’s the question: Who, on behalf of election authorities, would decide whether such criticism is truthful? Sounds like a short trip to lengthy litigation over freedom of speech. Which, by the way, might be just the kind of publicity organizers of the next recall would crave.
We urge SB 250’s prime sponsor, Senate Majority Leader Steve Fenberg of Boulder, to remove the changes to the recall process from his bill. Otherwise, he’s pitching a cure in search of an ill — in search of a court battle.