Legal Question in Constitutional Law in North Carolina

Re: Recall Elections

It is not clear whether you are asking about a member of the House or of the Senate, but either way the answer is the same.

The U.S. Constitution is silent on the subject of recalling Senators and Representatives. It is generally agreed that they cannot be recalled unless the Constitution is amended to specifically authorize such a procedure. Some members of Congress are advocating such an amendment.

The Constitution does not expressly forbid such recalls, though, and if the voters of a state tried to recall a Senator or a Representative the federal courts would have to decide whether it can be done. I think it is a safe bet that the courts would rule such a recall unconstitutional, but there is a chance I would be proven wrong.

Part of the problem is that federal law says nothing about how many signatures would be required, how to validate them, how much time has to be allowed for the effort, how the recall election would be held, etc. The states that permit recalls might try to apply their own laws to the process. While state laws generally don't hold sway over the federal government, the Constitution does give the states some measure of control over federal elections, as well as the authority to temporarily appoint a Representative or Senator to fill a vacancy. It can be argued that this authority implies the authority to have a recall.

Given that relatively few people believe the law permits such a recall, it is rare for anyone to go through the expense and effort of trying. It does happen now and then, and so far all of the efforts have failed to garner the number of signatures they were seeking. Perhaps a court will eventually have to decide the issue.