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LEGISLATIVE ALERT - Recall Petitions and Elections

The Legislature recently approved HB 6060 and HB 6063 which make significant changes to the procedure for recall petitions and recall elections.  The bills were signed by the Governor on December 20 and are now in effect as Pubic Acts 417 and 418 of 2012.  Below is our summary of the bills and the provisions as they relate to the recall of local elected officials:

HB 6060 (PA 417 of 2012)

--If an elective officer’s term of office is more than two years, a recall petition may not be filed in the first year and the last year of the term.  If the term of office is two years or less, the limitation on recall petitions in the first and last six months of the term remains in place.

--Recall petitions must now be “factual” as well as clear.  Recall petitions are reviewed by the county election commissioners to determine if they meet this standard.   

--If any reason for recall is not factual or of sufficient clarity, the entire petition must be rejected by the county election commissioners.   

--If a determination of the county election commissioners on a recall petition is appealed to circuit court, the recall petition is not valid for circulation until a ruling by the circuit court or until 40 days after the appeal, whichever is sooner.  A recall petition is not valid for circulation if at any time, the circuit court determines that each reason is not factual and of sufficient clarity.

--A recall petition is valid for 180 days after either of the following, whichever occurs later:  1) the date of determination of whether each reason is factual and of sufficient clarity by the board of county election commissioners, and 2) the earlier of a) the date of determination of whether each reason is factual and of sufficient clarity by the circuit court and b) 40 days after the appeal.

--Signatures may be counted on a recall petition only if they were signed not more than 60 days (rather than 90 days) before the recall petition was filed (and the petition is filed within the 180 day period in which the petition is valid as described above).  This reduces the time for circulating recall petitions from 90 days to 60 days (from the time of the first signature on the petition).    

--If a valid recall petition is filed with sufficient signatures, the county clerk calls the recall election which shall be held not less than 95 days after the recall petition is filed and shall be held on the next regular May or November election date, whichever occurs first.

--After filing a recall petition and after a recall election, no further recall petitions shall be filed against the incumbent during that term of office.

--When a recall election is called, the incumbent shall be deemed to have filed for the recall election and his or her name shall appear on the recall election ballot unless the incumbent withdraws within 10 days after the filing of the recall petition.

--If a recall election involves a nonpartisan office, a candidate shall be nominated for the office by filing a nominating petition or paying a $100 nonrefundable fee within 10 days after the recall election is called. 

--If a recall election involves a partisan office, a political party candidate is nominated by the county executive committee of the political party (with some variations depending on whether the electoral district is smaller than or larger than a single county and whether three or more members of the county executive committee reside in the electoral district).  If the incumbent declines to be a candidate, the political party of the incumbent nominates the candidate using this nomination procedure.  A candidate without a party affiliation may qualify for a partisan office by filing a qualifying petition that contains 10% of the number of signatures required under Section 544f of the Election Law within 10 days after calling the recall election.

--If an elective officer whose recall is sought resigns after the calling of a recall election, the election shall not be held.

--An elected officer who is recalled shall not be appointed to fill a vacancy in elective office in the electoral district or governmental unit from which the recall was made during the term of office from which the officer was recalled. 

Additional Comments: 

  1. It is entirely unclear how the county election commission will determine whether a recall petition is “factual”.  The bill does not define the term “factual”.  Does this mean that the commissioners must make a finding that the reason for recall is true and accurate?  If so, how do the commissioners make this determination?  Is it based solely on the evidence presented to them?  Is there an evidentiary hearing with sworn testimony?  Do the rules of evidence apply (such as hearsay)?  This may be a nightmare for the commissioners and frustrating for an elected official who is the subject of a recall petition.
  2. The bill clarifies that all reasons for recall must meet the statutory standard.  Until now, it was not entirely clear what happened if the county election commissioners determined that one or more but not all reasons for recall in a recall petition satisfied the statutory standard. 
  3. The recall election process is significantly changed.  Under current law, a recall election is held to determine solely whether the officer is recalled or not.  If the officer is recalled, then there is a special election to fill the vacancy.  Under this bill, the officer will be placed on the ballot unless he or she withdraws within 10 days after the recall petition is filed.  If the officer does not withdraw, then he or she will run against a candidate from the other party for a partisan office (and any candidates who file without party affiliation).  If the office is nonpartisan, then the officer runs against any person who files a nominating petition or pays the filing fee of $100.  If the officer targeted by the recall petition withdraws, then others are nominated and/or may run for the office at the election in accordance with the procedures described above.  Thus, there is only one election, not two, and the officer runs in that election against other candidates, if any, unless he or she has withdrawn.

HB 6063 (PA 418 of 2012)

--This bill adds a new section, Section 952b, stating that a recall petition shall not be filed with the county election commissioners during the first and last six months of office. 

Additional Comment:

  1.  This new section added by HB 6063 seems to conflict with provisions of HB 6060 which amend a different section of the recall statute, Section 951, to provide that if a term of office is more than two years, a recall petition may not be filed during the first year and last year of the term of office. 

We will continue to monitor this issue.  In the meantime, if you have any questions about this legislation, please feel free to contact our office.

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