Case No.

20100228
NORTH DAKOTA SUPREME COURT

RECALLND,

Petitioner,

v.

ALVIN JAEGER, SECRETARY OF STATE FOR NORTH DAKOTA,

Respondent.

On Petition for Original Jurisdiction

BRIEF OF PETITIONER

Andrew L. Schlafly
939 Old Chester Rd.
Far Hills, NJ 07931
aschlafly@aol.com
908-719-8608
908-934-9207 (fax)
(applying for admission pro hac vice)

Jeffrey L. Sheets (ID # 05047)

Heritage Place
201 Main St. S., Suite 201
Minot, ND 58701
701-838-5333
Attorneys for Petitioner
 TABLE OF CONTENTS

Table of Contents ......................................................................................... ii

Table of Authorities .....................................................................................iv

Jurisdictional Statement ................................................................................1

Statement of Issues .......................................................................................2

Statement of Case .........................................................................................3

A. Nature of the Case ..............................................................................3

B. Course of Proceedings and Disposition Below ....................................4

Statement of Facts .........................................................................................4

Summary of Argument .................................................................................5

Argument ......................................................................................................7

I. Whether the Procedures in N.D. Const. Art. III, §§ 6 and 7,

Apply to Recall Proceedings under N.D. Const. Art. III, § 10 ..................7

II. The Appropriateness of the Supreme Court Exercising

Original Jurisdiction in this Matter......................................................... 11

III. Whether the North Dakota Constitution Allows the Recall of

a U.S. Senator ........................................................................................ 12

A. The Text of the North Dakota Constitution Is Clear: “Any

elected official” Means “Any elected official,” including
Congressmen ............................................................................... 13

B. Nothing in the Legislative History Suggests an Abdication

of the Power of the People To Recall Congressmen ..................... 16

ii
 IV. The U.S. Constitution Allows the Recall of a U.S. Senator .............. 19

A. The Best Historical Evidence – a Letter by George

Washington Within Two Months of the Constitutional
Convention – Confirms the Power to Recall ................................ 19

B. Precedents of the U.S. Supreme Court Tend To Support

Rather Than Oppose the Power to Recall ..................................... 22

C. Denying a Power of the People To Recall Inevitably

Denies Them Their Constitutional Right to Representation,
as when a Congressman Is Convicted of a Felony ........................ 24

Conclusion .................................................................................................. 27

Certificate of Compliance ........................................................................... 28

Certificate of Service .................................................................................. 29

iii
 TABLE OF AUTHORITIES

Cases

A.P.I., Inc. v. United States, 430 N.W.2d 333 (N.D. 1988) ......................... 18

Bolinske v. Jaeger, 2008 ND 180 (2008) ................................................. 1,11

Citizens United v. FEC, 130 S. Ct. 876 (2010)............................................ 23

City of Grand Forks v. Thong, 2002 ND 48 (N.D. 2002) ............................ 17

Committee to Recall Robert Menendez from the Office of United

States Senator v. Wells, 413 N.J. Super. 435, 995 A.2d 1109
(App.Div. 2010), cert. granted, 201 N.J. 498, 992 A.2d 793
(2010) ............................................................................................. passim

Effertz v. North Dakota Workers’ Compensation Bureau, 481

N.W.2d 218 (N.D. 1992)........................................................................ 11

FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007).................................. 23

Froysland v. Workers’ Comp. Bureau, 432 N.W.2d 883 (N.D. 1988) ......... 11

Lips v. Meier, 336 N.W.2d 346 (N.D. 1983) .................................................8

Municipal Services Corp. v. Kusler, 490 N.W.2d 700 (N.D. 1992) ...............9

N.Y. Times Co. v. Tasini, 533 U.S. 483 (2001) .......................................... 21

State v. Bartelson, 2005 ND 172 (2005)...................................................... 17

State v. Manning, 134 N.W.2d 91 (N.D. 1965) ........................................... 17

U.S. Term Limits v. Thornton, 514 U.S. 779 (1995) .............................. 22,23

United States v. Mitchell, 445 U.S. 535 (1980) ........................................... 18

iv
Constitution, Statutes and Official Documents

Attorney General Opinion of North Dakota, 2010 N.D. AG LEXIS

10; 2010 Op. Atty Gen. N.D. 8 (May 13, 2010) ............................. 6,16,18

Attorney General Opinion of Wisconsin, 68 Op. Atty Gen. Wis. 140,

1979 Wisc. AG LEXIS 61, *11 - *12..................................................... 13

Declaration of Independence ....................................................................... 27

N.D.C.C. § 16.1-01-09.1(1) & (2) .................................................................5

N.D.C.C. § 32-34-01 ................................................................................ 1,11

N.D.C.C. § 32-34-02 ................................................................................ 1,11

N.D. Const., art. III, §2 ......................................................................... 8,9,10

N.D. Const., art. III, §§ 6 and 7 ............................................................ passim

N.D. Const., art. III, §10 ...................................................................... passim

N.J. Const., art. I, § 2(b)................................................................................3

U.S. Const., First Am. ...................................................................................7

Wisconsin Const., art. XIII, § 12.1 ................................................................3

Articles

“Abscam Score: Government Ahead, 4-0,” U.S. News & World

Report (Dec. 15, 1980)........................................................................... 25

Charles Babcock, “FBI ‘Sting’ Snares Several in Congress,”

Washington Post A1 (Feb. 3, 1980) ....................................................... 24

The Forum, Fargo-Moorhead (Apr. 7, 1977)............................................... 16

v
Letter from George Washington to Bushrod Washington, dated Nov.
10, 1787 (quoted in full in The Writings of George Washington
from the Original Manuscript Sources 1745-1799, Section 29:311
(Ed. by John C. Fitzpatrick) ................................................................... 20

“Wisconsin GOP Congressman Backs Drive to Recall Senators,”

Washington Post A04 (Apr. 22, 1997) ................................................... 13

Internet

http://bioguide.congress.gov/scripts/biodisplay.pl?index=w000502 ........................... 24

http://etext.virginia.edu/etcbin/toccer-
new2?id=WasFi29.xml&images=images/modeng&data=/texts/english/modeng/p
arsed&tag=public&part=233&division=div1 ........................................................ 20

http://www.ohiohistorycentral.org/entry.php?rec=1782 .......................................... 26

http://www.recallcongressnow.org/downloads/WisconsinRecallWashPost.pdf ............ 13

vi
 JURISDICTIONAL STATEMENT

[P1] This Court has original jurisdiction to order the Secretary of State to

allow the petition for recall to proceed, because there is not “a plain, speedy,

and adequate remedy in the ordinary course of law.” Bolinske v. Jaeger,

2008 ND 180, P4 (2008) (citing N.D.C.C. § 32-34-02). N.D.C.C. § 32-34-

01 authorizes the relief sought here: “a writ of mandamus may be issued by

this Court to compel the performance of an act which the law specifically

requires a state official to perform.” 2008 ND 180, at P4.

[P2] The New Jersey Supreme Court, in an analogous case, granted

expedited review to consider similar issues. Committee to Recall Robert

Menendez from the Office of United States Senator v. Wells, 201 N.J. 498,

992 A.2d 793 (2010) (granting certiorari on an expedited basis).

1
 STATEMENT OF ISSUES

[P3] At issue is whether the Secretary of State should block a petition for

recall of a U.S. Senator. Issues presented include:

1. Whether the procedures in N.D. Const. art. III, §§ 6 and 7, apply to

recall proceedings under N.D. Const. art. III, §10.

2. The appropriateness of the Supreme Court exercising original

jurisdiction in this matter.

3. Whether the North Dakota Constitution allows the recall of a U.S.

Senator.

4. Whether the U.S. Constitution allows the recall of a U.S. Senator.

2
 STATEMENT OF CASE

[P4] North Dakota was the first State in the nation to recall a high-level

official, its governor, in 1921. Then – and now – North Dakota has had a

broad recall provision in its Constitution, empowering the people to exercise

their rights to representative government. North Dakota set the standard for

the rest of the nation to follow. Five years later Wisconsin, long affiliated

with the Progressive Movement that supported democratic government,

imitated North Dakota and adopted a broad recall provision for its

Constitution. See Wisconsin Const., art. XIII, § 12.1. Other States,

including California and New Jersey, have imitated North Dakota as well.

See, e.g., N.J. Const., art. I, § 2(b).

[P5] Petitioner RECALLND is a nonprofit North Dakota corporation,

organized for the purpose of promoting the constitutional use of the recall

process in North Dakota.

A – Nature of the Case

[P6] Joseph Wells, the founder of RECALLND, prepared a petition for

recall of U.S. Senator Kent Conrad of North Dakota. Wells filed his petition

with the office of the Secretary of State on May 3, 2010.

3
 B – Course of Proceedings and Disposition Below

[P7] Alvin Jaeger, in his official capacity, rejected the petition of Joseph

Wells and RECALLND by letter dated May 13, 2010. Specifically,

Secretary Jaeger stated that:

Based on an opinion issued on May 13, 2010, by the Attorney

General, North Dakota’s Constitution and its state’s laws do not
provide for a recall of a person elected to a federal congressional
position.

Therefore, I have no authority to approve for circulation the petition

you submitted.

Letter from Jaeger to Wells (May 13, 2010).

[P8] On July 15, 2010, RECALLND filed a timely petition for review by

this Court.

STATEMENT OF FACTS

[P9] The Secretary of State has refused to allow the petitioning by the

People of North Dakota to recall the U.S. Senator Kent Conrad.

4
 SUMMARY OF ARGUMENT

[P10] The power of the people to recall “[a]ny elected official” has been

well-established for nearly a century, and is not to be taken away by

misconstruing this express provision in the North Dakota Constitution. N.D.

Const., art. III, § 10 (emphasis added). As explained below, no narrower

interpretation of this provision is grammatical or plausible.

[P11] Furthermore, and independent of the constitutional requirement

above, there is an express statutory mandate enabling the people to

participate in a petition to recall. This statutory requirement is unambiguous

and fully consistent with constitutional rights of petition:

A request of the Secretary of State for approval of a petition to recall

an elected official or appointed official of a vacated elected office may
be presented over the signatures of the sponsoring committee on
individual signature forms that have been notarized. The secretary of
state shall prepare a signature form that includes provisions for
identification of the recall ….
N.D.C.C. § 16.1-01-09.1(1) & (2) (emphasis added). The statutory language

is “shall,” not “may,” and the rejection of the petition for recall here was in

violation of this statutory mandate. Cf. Committee to Recall Robert

Menendez from the Office of United States Senator v. Wells, 413 N.J.

Super. 435, 449-50, 995 A.2d 1109, 1118 (App.Div. 2010), cert. granted,

5
201 N.J. 498, 992 A.2d 793 (2010) (emphasizing that election laws are to be

“liberally construed” such that “voters are permitted to exercise the franchise

and that the will of the people as expressed through an election is heard.”).

[P12] An opinion of the Attorney General – which did not even benefit from

briefing by interested parties on the issue – cannot trump the Constitution

and statutory law, and the opinion erred in denying people the power to

recall U.S. Senators. 2010 N.D. AG LEXIS 10; 2010 Op. Atty Gen. N.D. 8

(May 13, 2010). The opinion misconstrues the constitutional provision in an

ungrammatical and implausible manner. The opinion concedes that there is

nothing in its legislative history indicating that the people ever abdicated

their longstanding power to recall federal officials, yet declares that the

people did somehow give up this power anyway. Despite a lack of textual

basis or legislative history, the opinion simply asserts that the people of

North Dakota gave away something dear to them for most of the century,

and gave it away without even realizing it. This is untenable.

[P13] North Dakota has not abdicated its historic leadership on the recall

issue, and the people of North Dakota did not silently and unknowingly give

up their power to recall federally elected officials. North Dakotans enjoyed

the power of recall of elected federal officials throughout most of the 20th
6
century, and did not unwittingly relinquish it. Moreover, the people enjoy

an independent right to petition for the recall of elected federal officials

regardless of whether they have an ultimate power of removal. See, e.g.,

U.S. Const., First Am. (establishing a right to petition). Furthermore, there

is no indication that the U.S. Supreme Court would invalidate a recall of a

U.S. Senator, and the Attorney General opinion mistakenly suggested

otherwise.

[P14] Accordingly, the Secretary of State should be ordered to approve the

petition for recall as required by the applicable statute.

ARGUMENT

I.

Whether the Procedures in N.D. Const. Art. III, §§ 6 and 7, Apply To

Recall Proceedings under N.D. Const. Art. III, §10.

[P15] The procedures in §§ 6 and 7 of Article III of the North Dakota

Constitution apply to Article III, § 10 because the people’s only recourse to

recall an elected official begins by applying to the Secretary of State to

circulate a petition. “Any elected official of the state, of any county or of any

legislative or county commissioner district shall be subject to recall by

petition of electors ....” N.D. Const., art. III, § 10. If the sponsors of a
7
petition are successful in initiating their petition and accumulating the

requisite signatures, their petition must appear on the ballot in the form of a

measure. Therefore, the approval of the petition to initiate that measure

must be approved by the Secretary of State. “A petition to initiate or to refer

a measure must be presented to the secretary of state for approval as to

form.” N.D. Const., art. III, § 2.

[P16] Sections 6 and 7 of the North Dakota Constitution clearly describe the

check on the power delegated to the Secretary of State. “All decisions of the

secretary of state in the petition process are subject to review by the supreme

court in the exercise of original jurisdiction.” N.D. Const., art. III, § 7. “All

decisions of the secretary of state in regard to any such petition shall be

subject to review by the supreme court.” N.D. Const., art. III, § 6.

[P17] The North Dakota Supreme Court has previously discussed this

question. In Lips v. Meier, this Court stated, “[i]n Article III, Sections 6 and

7, our Constitution specifies that all decisions of the Secretary of State in

regard to any such petition shall be subject to review by our court in the

exercise of original jurisdiction.” 336 N.W.2d 346, 348 (N.D. 1983) (setting

aside the secretary of state’s approval of a petition that contained improper

statements).
8
[P18] On May 3, 2010, petitioner submitted to Secretary of State Alvin

Jaeger an application to petition for the recall of United States Senator Kent

Conrad. In his response to the petitioner, Secretary Jaeger wrote, “Based on

an opinion issued on May 13, 2010, by the Attorney General, North Dakota's

Constitution and its state’s [sic] laws do not provide for a recall of a person

elected to a federal congressional position.” Letter by Secretary Jaeger to

Joseph Wells, May 13, 2010. The Secretary continued, “Therefore, I have

no authority to approve for circulation the petition you submitted.” Id.

[P19] This assertion by the Secretary of State that he does not have the

authority to approve this petition based on the substance contradicts N.D.

Const., art. III, § 2, which states that the secretary must approve the petition

for circulation if it is in proper form. In Municipal Services Corp. v. Kusler,

the North Dakota Supreme Court wrote:

Form is to be distinguished from substance. Art. III, Sec. 2 N.D.

Const., limits the Secretary's review to whether the petition “is in
proper form and contains the names and addresses of the sponsors and
the full text of the measure.” It does not authorize a review of the
substance or merits of the text of the measure. When a petition is
challenged, neither the Secretary nor this court should be concerned
with the substance or merit of the proposed measure, because under
our system of government, the resolution of a proposal’s merit rests
with the electorate.
490 N.W.2d 700, 705 (N.D. 1992). The court went on to hold:
9
 ... that the Secretary’s constitutional responsibility under Art. III, Sec.
2, N.D. Const., to approve the form of a petition is limited to
ascertaining whether the petition complies with the statutory
requirements for form and whether the petition contains
impermissible, extraneous statements. In reviewing a petition for
form, the Secretary must not be concerned with the merits of the
petition or with the substance of its text.
Id., at 706.

[P20] Petitioner properly submitted the application to petition for the recall

of Senator Kent Conrad to the Secretary of State under N.D. Const., art. III,

§ 10. By rejecting petitioner’s petition based on the substance and content,

the Secretary of State failed in his delineated duty to accept or reject a

petition based exclusively on form pursuant to N.D. Const., art. III, § 2. The

Secretary of State’s decision to reject that petition, regardless of the reason,

is therefore subject to review by this Court pursuant to sections 6 and 7 of

article III of the North Dakota Constitution.

10
 II

The Appropriateness of the Supreme Court

Exercising Original Jurisdiction in this Matter.

[P21] There are no disputed facts here. This Court can and should resolve

this dispute based on the arguments before it. There is no reason to prolong

the uncertainty by deferring to a lower court for further proceedings.

[P22] In Bolinske v. Jaeger, 2008 ND 180, P4 (2008), this Court held that:

Under N.D.C.C. § 32-34-01, a writ of mandamus may be issued by

this Court to compel the performance of an act which the law
specifically requires a state official to perform. The writ must be
issued in all cases where there is not a plain, speedy, and adequate
remedy in the ordinary course of law. N.D.C.C. § 32-34-02.

[P23] There “is not a plain, speedy, and adequate remedy in the ordinary

course of law” here. The Secretary of State has failed to comply with his

statutory obligation to approve the petition for recall, by asserting that his

obligation to do so would be unconstitutional. But “one who attacks a

statute on constitutional grounds, defended as that statute is by a strong

presumption of constitutionality, should bring up his heavy artillery or

forego the attack entirely.” Effertz v. North Dakota Workers’ Compensation

Bureau, 481 N.W.2d 218, 223 (N.D. 1992) (citing Froysland v. Workers

Comp. Bureau, 432 N.W.2d 883, 892 (N.D. 1988)). The Secretary of State

11
has failed to justify his constitutional claim with the requisite “heavy

artillery,” and this Court should exercise original jurisdiction to order the

Secretary of State to fulfill his statutory obligations.

III.

Whether the North Dakota Constitution

Allows the Recall of a U.S. Senator.

[P24] The text of the North Dakota Constitution plainly allows the recall of

a U.S. Senator, and no plausible interpretation supports ruling otherwise.

The people of North Dakota did not unwittingly give up this basic power

when the Constitution was revised in 1979, and nothing in the legislative

history is to the contrary. A similar issue in New Jersey resulted in a

unanimous appellate decision in favor of the right of the people to petition

for recall of a U.S. Senator. See Committee to Recall Robert Menendez

from the Office of United States Senator, cited supra.

[P25] The same issue in Wisconsin resulted in an opinion by its Attorney

General in favor of the right of the people to petition for recall. Wisconsin

followed the lead of North Dakota and added a recall provision to its own

Constitution in 1926, five years after North Dakota added its recall provision

to its Constitution. An opinion by the Wisconsin Attorney General upheld

12
the constitutionality of this recall provision with respect to U.S. Senators in

1979. See 68 Op. Atty Gen. Wis. 140, 1979 Wisc. AG LEXIS 61, *11 - *12

(“Wisconsin’s recall provisions are wholly consistent with Congress’

statutory scheme for regulating the times and manner of elections … [and]

nothing in connection with the recall would in any way impinge upon the

regular election.”). A recall effort against the two sitting U.S. Senators from

Wisconsin was initiated and widely accepted as legal, but failed to attain the

number of signatures needed. See “Wisconsin GOP Congressman Backs

Drive to Recall Senators,” Washington Post A04 (Apr. 22, 1997).1

[P26] North Dakota, the historic leader of the nation in establishing the right

of the people to recall, should be at least as progressive as these other states

in advancing the democratic process with the power to recall.

A. The Text of the North Dakota Constitution Is Clear: “Any elected

official” means “Any elected official,” including Congressmen.

[P27] The North Dakota Constitution is clear. “Any elected official” in

North Dakota may be recalled by the people. The type of official who may

be recalled is not restricted by the Constitution in any way.

1
http://www.recallcongressnow.org/downloads/WisconsinRecallWashPost.pdf (viewed
8/27/10).
13
[P28] There is no limitation inherent in the phrase “[a]ny elected official.”

What follows that phrase in the Constitution are terms for the geographic

jurisdictions that elected the official, and which are thereby authorized to

recall him. The meaning of the phrase is as follows: “Any elected official”

who is elected by the people “of the state, of any county or of any legislative

or county commissioner district.”

[P29] Grammatically, the Constitution uses a straightforward parallel

construction. The four terms “state,” “county,” “legislative” and “county

commissioner” are placed on equal footing with each other, and each

modifies the term “district” that follows afterward. Stated fully in a more

verbose manner, this phrase means the following: “of the state district, of

any county district or of any legislative district or county commissioner

district.” But because the repetitive use of “district” is unnecessary and

inelegant, it need not be restated four times like that. The omission of the

repetition does not change the meaning. The terms “state,” “county,”

“legislative” and “county commissioner” still refer to the geographic term

“district” that follows them.

14
[P30] No alternative parsing makes sense. The Attorney General, in his

opinion dated May 13, removes “of the state” from the parallel series to

which it belongs, and instead attaches it as the sole modifier of “any elected

official.” That interpretation is grammatically incorrect. But even if this

construction were correct, then “of any legislative … district” would also

apply to “any elected official.” Thus even under the Attorney General’s own

interpretative approach, “Any elected official of … any legislative …

district” would be subject to recall. Congressmen are plainly elective

officials of legislative districts, and in North Dakota the congressional

“legislative district” is the state itself. U.S. Senators are elected officials of

that legislative district, and are thus subject to recall.

[P31] The North Dakota Constitution thereby affirms that the people who

elected any official have the power to recall him, and the recall provision

states this elegantly. The people cannot recall the United States President

because (unlike Senators) he is not elected by any state or legislative district

in North Dakota, and the artfully concise wording in the North Dakota

Constitution thereby excludes that possibility. But any official who is

elected by a state or legislative district in North Dakota, such as a U.S.

Senator, may be recalled by same district that elected him.

15
 B. Nothing in the Legislative History Suggests an Abdication of the
Power of the People to Recall Congressmen.

[P32] As the Attorney General concedes, the legislative history for the

modification to the recall provision does not contain any reference to waiver

by the people of their power to recall U.S. Senators.

[P33] The Attorney General declares that “[t]he legislative history of H.C.R.

3088 is very sparse and not particularly instructive.” 2010 N.D. AG LEXIS

10, *7. But lack of evidence for the claim that there was a major takeaway

in power from the people suggests that the claim is false. By analogy, the

lack of evidence of involvement by an accused in a crime – such as finding

none of his DNA at the crime scene – is suggestive that he did not commit

the crime. Likewise, when there is no evidence that a massive deprivation of

power from the people occurred when constitutional language was redrafted

in a more concise way, then one should conclude that the people never gave

away this power.

[P34] To the extent newspaper stories are relevant, a comprehensive

analysis of the proposed constitutional changes was published in The Forum,

Fargo-Moorhead, at page 14 (Apr. 7, 1977). It provided a detailed

16
explanation of the modifications to the recall provision, including lowering

the signature requirement for petitions from 30% to 25% of voters and also

eliminating the requirement of a special election within 40 to 45 days of

filing the petition signatures. But the detailed explanation of changes said

nothing about eliminating the power of the people to recall congressmen.

This corroborates that no such waiver of this important power by the people

was contemplated.

[P35] The waiver of key rights by the people – or by a sovereign – must be

express to be valid. For example, in the context of the people’s Fourth

Amendment rights against a warrantless search, “The failure to object to a

search is not a waiver. To be a valid waiver, it must clearly appear that the

defendant voluntarily waived his rights and knowingly permitted the search

by some express consent.” State v. Bartelson, 2005 ND 172, P38 (2005)

(quoting State v. Manning, 134 N.W.2d 91, 97 (N.D. 1965), emphasis

added). Likewise, in the context of the people’s right to a jury trial, “waiver

of the right to a jury trial must be express.” City of Grand Forks v. Thong,

2002 ND 48, P17 (N.D. 2002) (emphasis added). As another example,

statutes are not construed to waive sovereign immunity unless the waiver is

express. “A waiver of sovereign immunity cannot be implied, but must be

17
unequivocally expressed.” A.P.I., Inc. v. United States, 430 N.W.2d 333,

335 (N.D. 1988) (citing United States v. Mitchell, 445 U.S. 535, 538 (1980),

emphasis added).

[P36] Consistent interpretation also requires preserving the power to recall

federal officials, because the shortening of the language in 1979 dropped the

references to “judicial” along with “congressional” as follows:

1921 version:

The qualified electors of the state or of any county, or of any

congressional, judicial or legislative district may petition for the
recall (of) any elective congressional, state, county, judicial or
legislative officer by filing a petition ….

1979 version:

Any elected official of the state, of any county or of any legislative or

county commissioner district shall be subject to recall by petition ….

N.D. Const., Article III, § 10 (emphasis added). If the more elegant and

more concise 1979 language intended to omit the power to recall

congressmen, then it also must have eliminated the power to recall elected

judicial officers. But even the Attorney General opinion concedes that

judges may still be recalled under the 1979 version, despite being expressly

dropped in the revision. 2010 N.D. AG LEXIS 10, *8. Accordingly,

congressmen can also be recalled.

18
[P37] The suggestion that the people waived their basic right to recall

federal elected officials without any meaningful discussion or debate of that

waiver, and without any express mention of that waiver, is untenable.

Construing such a waiver would be contrary to precedents against implied

waivers of significant rights in many areas of law.

IV

The U.S. Constitution Allows the Recall of a U.S. Senator.

[P38] Nothing in the U.S. Constitution denies the people the power to recall

U.S. Senators, and there is a contemporaneous letter by George Washington

to confirm it. Moreover, denying the power of the people to recall

Congressmen would result in other violations of the Constitution, such as

lack of adequate representation when a Congressman has been convicted of

a crime.

A. The Best Historical Evidence – a Letter by George Washington

Within Two Months of the Constitutional Convention –
Confirms the Power to Recall.

[P39] George Washington expressly confirmed the power to recall shortly

after presiding over the Constitutional Convention in 1787:

The power under the Constitution will always be in the People. It is

entrusted for certain defined purposes, and for a certain limited period,

19
 to representatives of their own chusing; and whenever it is executed
contrary to their Interest, or not agreeable to their wishes, their
Servants can, and undoubtedly will be, recalled.2

Letter from George Washington to Bushrod Washington, dated Nov. 10,

1787 (quoted in full in The Writings of George Washington from the

Original Manuscript Sources 1745-1799, Section 29:311 (Ed. by John C.

Fitzpatrick), emphasis added).

[P40] Washington’s letter is crystal clear: “whenever” the public servants

act contrary the “wishes” of the people, they “can, and undoubtedly will be,

recalled.” Given the climate of the times and the skepticism of Americans

toward establishing federal power, it is implausible that Washington meant

anything other than what he said. U.S. Senators can be recalled by the

sovereign people “whenever” necessary. The sovereign people did not

waive this fundamental nature of the master-servant relationship.

[P41] The provision of a fixed, limited term for a U.S. Senator does not

negate the power to recall the public servant before the term expires. Many

well-established concepts in the law provide for a right of termination before

2
http://etext.virginia.edu/etcbin/toccer-
new2?id=WasFi29.xml&images=images/modeng&data=/texts/english/modeng/parsed&t
ag=public&part=233&division=div1 (viewed 8/25/10).

20
completion of a term. The predecessor to the people as sovereign in colonial

times was the King, and he revoked many of the colonial charters whenever

he saw fit to do so, regardless of their term. Another example of early

termination arises in copyright law, where there is always an “inalienable

authorial right to revoke a copyright transfer.” N.Y. Times Co. v. Tasini,

533 U.S. 483, 496 n.3 (2001). More examples arise in simple contracts

between private parties, which often have a fixed term but are also often

lawfully terminated prior to the end of the contemplated duration.

[P42] It was not until long after Washington’s letter and ratification of the

Constitution by nine States that a few opponents of the U.S. Constitution

criticized its lack of an express power of the people to recall. The Federalist

Papers contain no reference to such criticism, illustrating how insignificant

and unwarranted it was. Powers not taken from the people by the

Constitution were reserved for the people, so a lack of an express power to

recall does not negate a power to recall. Moreover, subsequent criticisms of

the Constitution cannot change its original meaning as drafted and finalized

at the Constitutional Convention, a meaning that was expressly confirmed by

George Washington shortly afterward.

21
[P43] Ratification of the Seventeenth Amendment in the 20th century further

empowered the people with respect to their U.S. Senators, and could have

only enhanced their power to recall those representatives.

B. Precedents of the U.S. Supreme Court Tend To Support

Rather Than Oppose the Power To Recall.

[P44] Some opponents of the recall power, including the North Dakota

Attorney General, rely on the U.S. Supreme Court decision in U.S. Term

Limits v. Thornton, which narrowly (5-4) invalidated term limits for

Congressmen. 514 U.S. 779 (1995). But that decision was grounded in

affirming the power of the people to elect and repeatedly reelect whomever

they like. It was an endorsement of the sovereign power of the people. That

same rationale supports the right of the people to recall. More power to the

voters means an ability to recall too.

[P45] Since the U.S. Term Limits decision was decided in 1995 there has

been an unmistakable shift towards more democratic participation by the

public, often at the expense of incumbents. Choosing sides against

democracy and greater citizen involvement cannot withstand the tide of

history. It would be highly ironic indeed if the State of North Dakota – the

leader of the nation in establishing and exercising the power to recall elected

22
officials – gave up on recall and took the back seat to other States that are

beginning to recall U.S. Senators.

[P46] The decision last January by the U.S. Supreme Court in the high-

profile Citizens United case is illustrative of the trend in favor of fewer

restrictions on democracy. There the Supreme Court cast aside dicta from

prior cases, and overturned precedents relying on them:

These considerations counsel in favor of rejecting Austin, which itself

contravened this Court’s earlier precedents in Buckley and Bellotti.
“This Court has not hesitated to overrule decisions offensive to the
First Amendment.”

Citizens United v. FEC, 130 S. Ct. 876, 912 (2010) (quoting FEC v. Wis.

Right to Life, Inc., 551 U.S. 449, 500 (2007) (Scalia, J.)).

[P47] In sum, with respect to the U.S. Constitution, it “is simply silent on

this question. And where the Constitution is silent, it raises no bar to action

by the States or the people.” United States Term Limits v. Thornton, 514

U.S. at 845 (Thomas, J., dissenting). This Court should not hold that a

power expressly granted to the people of North Dakota by their Constitution

since 1921, and implicitly since 1979, is somehow in violation of the U.S.

Constitution today.

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 C. Denying a Power of the People To Recall Inevitably Denies
Them Their Constitutional Right to Representation, as when a
Congressman Is Convicted of a Felony.

[P48] Denial of the power to recall would deny the people meaningful

representation when a Senator or Congressman is convicted of a felony and

not removed by Congressmen from other States. A power of recall is

essential for the people to protect their interests during such a process, either

to hasten the resignation or compel more timely removal and replacement.

[P49] For example, the ABSCAM (“Arab Scam”) investigation was a sting

operation in the late 1970s that became a massive public scandal beginning

in February 1980. Charles Babcock, “FBI ‘Sting’ Snares Several in

Congress”, Washington Post A1 (Feb. 3, 1980). Yet U.S. Senator Harrison

Williams – a target of the investigation – remained in the U.S. Senate as the

“representative” of his State during that entire time, and for nearly another

year after his conviction on May 1, 1981.3

[P50] Without a recall mechanism, the people of his State (New Jersey)

were deprived of effective representation for over two years. Harrison

Williams refused to resign despite his utter lack of public credibility and his

inability to give his attention to representing his State rather than defending

3
http://bioguide.congress.gov/scripts/biodisplay.pl?index=w000502 (viewed 8/25/10).
24
himself. Even after he was sentenced to jail he still would not resign. On

August 24, 1981, the Ethics Committee of the U.S. Senate acted to defend its

own reputation by voting unanimously for his expulsion due to conduct that

it found to be “ethically repugnant.”4 But Harrison Williams still insisted on

remaining in office for more than six additional months, continuing to

deprive New Jerseyans of effective representation. Williams even sued the

Senate to delay and block its efforts at expulsion. On February 17, 1982, a

federal court sentenced Williams to three years in prison. Williams still

refused to resign immediately.

[P51] A Congressman caught in the same scandal never resigned at all.

Michael J. Myers took a $50,000 bribe from an undercover FBI agent in

August 1979. He was not expelled by Congress until October 1980, which

means that his district lacked effective representation for more than a year.

His district was then completely without representation in the House of

Representatives for three months until after the next general election, when a

successor Congressman was sworn in.5

[P52] More recently, Ohio Congressman James Traficant was stripped of his

right to vote in the House due to his conviction in 2002, which completely

4
Id.
5
“Abscam Score: Government Ahead, 4-0,” U.S. News & World Report (Dec. 15, 1980).
25
denied his district representation as he continued to remain in office for

months until the House removed him by expulsion in July 2002. But even

that did not restore representation to his district. Because Traficant never

resigned, his district in Ohio was left without representation until the next

general election and the subsequent swearing in of his successor in January

2003.6

[P53] It is inevitable, in the course of human events, that a future U.S.

Senator of any State will, for medical, emotional, personal, legal, or

ideological reasons, cease to represent his constituents and fail to do his job.

If and when that happens, North Dakotans can ensure continuation of their

rightful representation by exercising their constitutional power of recall.

The most fundamental elements of our constitutional republic are its many

checks and balances, and the power of recall is the only check and balance

that the people have against a U.S. Senator who no longer represents them.

As illustrated by the examples above, the other remedy of expulsion is not a

remedy available to a Senator’s constituents and is not effective in obtaining

timely representation for those constituents. The power of recall is the only

viable option to protect other constitutional rights of the people.

6
http://www.ohiohistorycentral.org/entry.php?rec=1782 (viewed 5/7/10).
26
 CONCLUSION

[P54] “Governments are instituted among Men, deriving their just powers

from the consent of the governed.” Declaration of Independence (emphasis

added). North Dakota has led the nation on this issue of the power of the

people to recall their representatives.

[P55] This Court should hear this dispute and order the Secretary of State to

allow the recall petition to proceed.

Dated: August 30, 2010

Respectfully Submitted,

/s/ Jeffrey L. Sheets

Jeffrey L. Sheets (ID # 05047)
Heritage Place
201 Main St. S., Suite 201
Minot, ND 58701
701-838-5333

/s/ Andrew L. Schlafly

Andrew L. Schlafly
Attorney for Petitioner
939 Old Chester Rd.
Far Hills, NJ 07931
aschlafly@aol.com
908-719-8608
908-934-9207 (fax)
(applying for admission pro hac vice)
27
 CERTIFICATE OF COMPLIANCE

The undersigned, as attorney for the Petitioner in the above matter, hereby

certifies that this brief was prepared with proportional typeface and its total

number of words, excluding words in the table of contents, table of

authorities, signature block, certificate of service and this certificate of

compliance, totals 5,217.

/s/Jeffrey L. Sheets

Jeffrey L. Sheets (ID # 05047)

Attorney for Petitioner

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 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of this brief was, on the 30th day

of August, 2010, sent by electronic means to counsel for Respondent.

/s/Jeffrey L. Sheets

Jeffrey L. Sheets (ID # 05047)

Attorney for Petitioner

29