Conservapedia:Recall attempt on Kent Conrad

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The following is a transcript of Andy Schlafly's Oral Arguments and Examination before the North Dakota Supreme Court, October 20, 2010 during the attempted recall of Kent Conrad.

Statements by A. Schlafly are in plaintext; the questions and statements of the Justices are indented and italicized.

Part one

Your Honor, Andrew Schlafly on behalf of RecallND, and we have the president of RecallND, Joe Wells, here, as well as vice-president Callum Shively.

Mr Chief Justice, and may it please the Court -- thank you for the opportunity to argue this issue of historic significance, not only to North Dakota but also to the entire nation.

We're here today to assert the political power of the people as established by the North Dakota Constitution. Article 1 of the North Dakota Constitution, Declaration of Rights, Section 2, states, quote: "all political power is inherent in the people." The first three words of the US Constitution are, quote: "We the people." The Declaration of Independence states that government derives its, quote: "just powers from the consent of the governed."

Congressmen, including US Senators, claim to be public servants. If they are servants, then the master, the people, may recall them from office. Now North Dakota is the leader in the United States in recognizing the power of the people to recall their representatives. It was here where the first state-wide recall occurred, in 1921, when Governor Lynn Frazier was recalled from office. Other states have since imitated this great state, and the next successful recall was in 2003, when California Gray Davis was recalled - the next successful gubernatorial recall.

The United States Supreme Court has repeatedly held that the people are sovereign. Justice Anthony Kennedy, writing for the court this year in the Citizens United campaign finance case which has received a lot of influence and notoriety because it altered the way campaign finance functions in this country, he said quote: "our nation is a republic where the people are sovereign."

Justice Sandstrom: So can the people recall the President of the United States?

No, Justice Sandstrom, because that would require all the states to participate in that. What we have here is, is issue where one of the states, North Dakota, has a provision for recalling its representatives. Recall the President, all the states...

Chief Justice VandeWalle: Counsel, so let me ask the question then, it, it is governed by a state constitution then; you agree that if the state constitution were to say 'no recall' there would be no recall?

Chief Justice, that's correct, but the people would have the mechanism for amending the state constitution.

Justice Sandstrom: What would we do if we agree with you that the North Dakota constitution permits a recall but conclude that the United States Constitution does not permit a recall; what would this court do in this case?

Justice Sandstrom, I think that issue is premature, because no one has been recalled yet. So I think the inquiry of whether the US Constitution permits or forbids this would await an actual recall of a representative; an actual vote where the people voted to recall someone. I don't believe the United States Supreme Court -- or this court -- should address the constitutionality under the US Constitution unless and until someone has actually been recalled. Otherwise it becomes an advisory opinion, which this court has repeatedly cautioned against doing. We don't know if the senator in this case, Senator Conrad, would actually be recalled by the people. We don't know that. It's premature to speculate whether a recall of him from office would be constitutional under the US Constitution.

Justice Crothers: Why isn't that question part and parcel of what the secretary is charged to do under Article 3, Section 10, second paragraph saying that the Secretary has to determine whether the petition is valid and sufficient?

Justice Crothers, typically, the Secretary only considers the form of an initiative, not the substance...

Justice Crothers: You're coming at that out of the Kusler case, I believe, if I recall your brief, and the Kusler case dealt with, uh, Section 6 did it not...

Yes

Justice Crothers: On an initiative or referendum, I forget which it was, but that Section 6 in particular says the Secretary of State shall pass on the sufficiency, or in other wor... in the words of the Constitution determine if the petition is insufficient. It doesn't talk about validity, but section 10 does have the additional word validity.

Your Honor, they're all part of the same Article 3, and if we're going to parse out and separate the different provisions of that Article 3, then that raises more troubling questions of whether the Secretary has to approve this at all.

Justice Crothers: Well that's what I was saying I wonder did you raise that issue, I mean if you look at Section 10 of our constitution provision as self-executing, which Section 1 of this article says it is, the approval seems to be after the petitions have been filed with the signatures on them, but the North Dakota statute requires prior approval, and have you challenged that statute?

Your Honor, that issue was raised in the amicus brief filed in this case, but our position as petitioners is that Article 3 should be read as a whole, and that it should not be separated out because then all sorts of troubling questions arise. So we think it's proper to ask the Secretary for his approval, for this petition to recall...

Justice Crothers: And you agree you cannot circulate petitions that would have any effect without his prior approval?

We feel that that prior approval would be proper, yes, but we feel that it's premature for the Secretary to reject the petition based on his view of what the US Constitution may require or allow. The Secretary of State is not supposed to be opining on the legal, uh, merits of an initiative or petition. Suppose someone...

Justice Crothers: The Secretary of State's relying on the opinion of the Attorney General, who does have an obligation to advise...

Well, but, Your Honor, with all due respect we don't think the Attorney General should be opining on whether the US Constitution allows the substance of an initiative or recall petition. Because there could be initiatives that violate the Constitution that should still be voted on...

Justice Crothers: Well let's go back to my question then, Section 10 seems to me to direct the Secretary to do just that; are you saying that the language of Section 10 of our constitution is somehow unconstitutional?

Justice Crothers, what are you citing specifically?

Justice Crothers: The end of the second line in the second paragraph. Section 10, second paragraph, second line towards the right, at least on my printout...

(pause, reading)"Petition shall be filed with the official with whom the petition for nomination to the office in question is filed" -- I believe that's after the signatures are obtained -- "who shall then call a special election." So I think that's after signatures are obtained, then they're filed, and then a special election is called, under Section 10.

Justice ???: So the Secretary of State should let the petitioner go through the exercise of gathering tens of thousands of signatures and then make the declaration whether it's constitutionally permissible to do what's trying to be done?

Your Honor, I would go one step further, and have the special election, and then, only if the senator loses the special election, is the question of the constitutionality before the court. The senator may win the special election, at which point this all becomes an advisory opinion.

Chief Justice VandeWalle: When you say the Attorney General shouldn't consider it, the amendments that are proposed, that our constitution was amended by proposals that came out of the legislature, which our constitution permits. Should the legislature, in determining whether or not our const -- our constitution, the North Dakota constitution, allows for the recall of senators or congressmen not be able to consider that question either?

Chief Justice, I think that question should be considered once it's ripe for review.

Chief Justice VandeWalle: No, that's not my question, counsel, I'm... hypothetically, I'm sitting as a senator in our Senate. Before me is this resolution that says, uh, we will or will not recall a senator; be able to recall a senator in North Dakota. Are you saying that that's not a proper concern of the legislature at that stage? Whether they can recall him or not?

Whether that's allowed under the US Constitution?

Chief Justice VandeWalle: Yes.

I believe that is a proper consideration for the Legislature with the procedure that you've identified, Your Honor.

Chief Justice VandeWalle: What do the minutes of our legislative committees that considered the recall provisions show on that issue?

The minutes are silent, Chief Justice, they don't have any discussion of whether the Legislature intended to allow or deny the power of the people to recall a US Senator. It was expressly in the North Dakota Constitution for most of the 20th century. Then there was a tightening of the language to make it more elegant, and, I might add, there was a change in the number of Congressional districts in North Dakota; so in the 60's there were two congressmen from North Dakota, and one of those seats was lost due to the census, so it became just one congressman, and then the language didn't fit the political subdivision.

Justice Sandstrom: I understand your analysis, and in fact when the original provision was adopted there were three congressional districts in North Dakota, and if they just took out 'Congressional district' that would certainly make sense because the Congressional district now in North Dakota is the whole state, but they also took out the term, the second reference to Congressional, as well in that provision.

I believe, Justice Crothers, they took out the entire redundancy,

Justice Crothers:Well, they took out..

in other words they took out all of that, that second phrase, because it was awkward language whereby the entire list was listed once: state, congressional, county, etc., and then it was listed again just...

Justice Sandstrom: ....districts -- and we did have multiple Congressional districts -- may petition for recall of any elected Congressional, state, county, judicial, or legislative officer, so wouldn't they need to leave in Congressional at that point?

I don't think so, Justice Crothers, because

(confusion of voices) Sandstrom; that's the other guy down there, all right?

I'm sorry, Justice Sandstrom, there were no congressional districts anymore, right? The congressional district became merged with the state.

Justice ???: But we still have Congressional officers, don't we?

We do, but our position is that list of items is a geographic listing.

Justice ???: Well the first part clearly is...

The first part is part of the serial list; in other words, the language is 'any elected official of the state, of any county, or of any legislative or county commission or district' -- so they're listing -- any elected official of a, b, c, or d. It's disjunctive. And in fact, one of the cases relied upon by the appellee, which was, have it right here, the, Walber case, emphasized when you have 'or' in a series like that, it's disjunctive. It's a, b, c, or d. It's in the alternative. And one of the alternative things -- any elected official of a legislative district. Well, clearly a Congressman is an elected official of a legislative district. So DeCloo says. It's elegant language, and when one puts language into the Constitution, you strive for elegant language. And I might say, it's also so artful, that if the US Supreme Court were ever to address this issue, and if they held that one did not have the power to recall a US Senator, the North Dakota Constitution would not have to change.

Chief Justice VandeWalle: Well, counsel, I'm looking at a publication entitled the North Dakota Constitutional Convention from 1972, and on the recall provision it says 'Similarities between this Section and Article 33 of the amendments are apparent but unlike the existing Article the proposed Section makes no reference to Congressional officers. This change came about in recognition of the fact that the people of a particular state have no authority to dictate to the United States the qualifications of its members." Right or wrong, that seems to be the basis for what they did.

Well, Chief Justice,

Chief Justice VandeWalle: And that's in a publication

But that amendment to the Constitution was rejected.

Chief Justice VandeWalle: It was, but the same provision was included when it was subsequently submitted.

Well, it's possible the people would not have accepted it, if that were the understanding, and the tie should go, you know, as in baseball the tie goes to the runner. Here, a tie/ambiguity should go in favor of the power of the people. Sovereign power of the people. And let me give a few examples. Because the posture of this case is addressing whether any senator can ever be recalled by the people. We have to address different scenarios. And one scenario is, suppose the Senator is in jail. The Senator is elected, and he's sent to jail.

Justice ???: Expulsion? You agree there's expulsion?

That expulsion is only available if the Senate itself does it.

Justice ???: That's true.

The people cannot do that. And Harrison Williams, senator from New Jersey, was convicted, and they did not throw him out of the Senate. He was sentenced to years in jail, and they still didn't throw him out of the Senate. The Senate, we know, is a collegial place, and they are reluctant to have the trials and the expulsion. We see that going on today, where there are allegations of ethical violations by people in Congress, it becomes a political issue, and Congress is unable to follow through. It's the people of North Dakota who have that power; who should have that power.

Justice ???: I just want to make sure that - there's been reference made, and I want to know if you'd agree or disagree, that no congressman or senator has ever been recalled in the history of the United States.

Your Honor, that is true, but there have been laws provided for the recall of Senators. Arizona had a law that provided for the recall of a Senator. And typically the Senators will resign before they have to be recalled. Harrison Williams ultimately resigned, after he was sentenced to jail. This went on for about two years, to great embarrassment to the people of New Jersey. He finally resigned. So to actually recall someone, typically the person will resign. But if you don't have the power to recall, they're not going to resign, and in fact there have been Congressmen who've been sent to jail in recent years who've refused to resign. And they have not been thrown out of Congress, either. So the people of that district are deprived representation while their Congressman is sitting in jail. Now if I could give you another examples, with all the , uh, aggressive campaigning we have now, suppose a candidate for Senate makes representations to the people, in order to be elected, and he's elected based on his representations. Suppose, to take the example of Bart Stupak, he represents that he's pro-life, and he's elected on that basis. And then, two weeks after he's sworn in, he says 'no, I'm sorry, I lied, I changed my mind.' Are the people stuck with him for six years, and can't do anything about that?

Justice Crothers: Well, if you adopt the analysis of the United States Supreme Court in the term limits case, the answer would be yes.

Justice Crothers, I feel term limits is the opposite side of the coin. It's really the opposite issue. Term limits takes away power of the people to repeatedly elect someone. So, term limits would say, 'even if he's George Washington, you cannot elect him to a third term.' And that's what the Supreme Court took offence at. They said in the term limits case, they said, the people have the power to make decision. If they want to keep re-electing somebody, they have the power to do that. So term limits is really...

Justice ???: But, but doesn't the same rationale follow, that if the people do not want to continue electing somebody that at the end of the term they dis-elect that person but until then they have elected that person to a term that is set by the Constitution.

Enter the Best Letter an Uncle Ever Wrote to His Nephew

They have elected people to that term, but as masters they have the ability to recall their servant. Now George Washington said this himself. Less than two months after the Constitution was written, and I put it in my brief, and the other side didn't address it, at all. I looked on the website, your marvellous website, and I did a search, and there's not even any reference to this letter; this is what George Washington said, less than two months after the Constitution was drafted. "The power under the Constitution will always be in the people. It is entrusted for certain defined purposes and for a certain limited period to representatives of their own choosing. And whenever it is executed contrary to their interest, or not agreeable to their wishes, their servants can and undoubtedly will be recalled."

Justice Sandstrom: But during the debates on the ratification of the Constitution, and, in at least two or three of the debates on the ratification, they, it indicates that there is no recall provision in the Constitution.

Justice Sandstrom, there is.. relatively little discussion of it even in the debates, and.. I did a search in the Federalist papers, for example, and... it's not mentioned anywhere in the Federalist Papers.

Justice Sandstrom: No, but there are other proceedings on the ratification of the Constitution of the United States, state-by-state.

Thats correct, Justice Sandstrom, and it was in New York, which was after nine states had already ratified the Constitution, and New York was deciding whether to join it, and at that point, people were making all sorts of arguments against it, and what it was, was people who were against the Constitution were starting to, to grasp at straws, and say 'Oh, it doesn't have this, it doesn't have that.' The Constitution's a short, elegant document. A lot of things that aren't in it. It doesn't say in the Constitution that you have freedom of association, but you do. It doesn't say that the Federal Government can establish a national bank, but it can. So what those debates are, are people grasping at straws to try to stop it. And, and they don't have any credibility. It was after the Constitution had been ratified!

Justice ???: Are you aware of any statements by George Mason on the ability to recall senators?

He was an antifederalist, so he was against the Constitution and it wouldn't surprise me if he used that as one of many, many arguments to prevent its passage, but that was rejected; people rejected George Mason's arguments; said 'no, George, that's, that's not right.' So, I mean, it's...

Justice Crothers: So, doesn't it amount to, we have contemporaneous records going both ways?

Justice Crothers, all due respect, this letter from George Washington, to his nephew, is heartfelt, and there's nothing, uh, contrary to it..

Justice ???: And George Mason's statement that United States Senators cannot be recalled, that wouldn't be heartfelt?

At that point, George Mason was an advocate, he was, he was advocating against ratification of the Constitution, so he's coming up with a, a, laundry list of things that he feels should've been in there and isn't in there, and his arguments were rejected. George Washington's arguments were set. He presided over the Constitutional..

Justice ???: But Mason's comments were made during the crucial Virginia debates on the ratification of the Constitution.

Well, Your Honor, I believe the Virginia debates were late in the game, too, though, and, if we're gonna...

Justice ???: There weren't nine states.

(chuckles) There weren't nine states yet, OK, but if we want to stack that against George Washington's letter, I will say Washington's letter takes priority. And I would also just...

Justice Sandstrom: Why is that? I mean, if we're looking for what the people intended, these were public debates, the debates of the constitutional conventions themselves were closed, there wasn't a record of that until late in Madison's life when he finished the transcription of his notes. But there were the public debates on the ratification, in the different states, and that, doesn't that reflect what was before the people who were actually voting to ratify the Constitution?

Justice Sandstrom, with all due respect, I don't think the arguments of advocates who were trying to stop the Constitution are as credible as a letter by George Washington to his nephew. I mean George Washington is essentially writing almost to his diary, saying this is the way it is. He's not...

Justice ???: That was his perception, but was that, but that would be the view of one vote, I mean he did preside, and he actually was probably responsible for the Constitution being adopted, but he wasn't active in the debates of the Convention.

Your Honor, he doesn't have an ax to grind, either. He's not advocating a position. George Mason was trying to stop the Constitution. So he's throwing everything up against the walls, seeing if anything will stick, and this, and this, and this, and people rejected George Mason, said 'no, George, you're wrong.'

Chief Justice VandeWalle: Would you agree that ultimately this question would be decided by the US Supreme Court, as the final word?

Yes, Chief Justice, and it has to be after the issue has ripened. After there has been a recall election. And I don't think the sovereign power of the people of North Dakota should be taken away on such a, a flimsy basis.

Chief Justice VandeWalle: Well I'm much more concerned, whether they were right or wrong, if our, if the people that proposed the amendment to the Constitution on recall did not intend that it be applied to the US Senators or US Congressmen, right or wrong, whether they thought they could be recalled or not. Does it make any difference. Aren't we really concerned with what our North Dakota Constitution allows and doesn't allow?

Under the US Constitution?

Chief Justice VandeWalle: No, no. I agree, for purposes of my question, forget about whether the US Constitution allows recall or not. If our provision says no recall, or does not cover recall, it doesn't make any difference, does it? It's what our constitution says.

That's correct, Your Honor, but I submit that the Constitution does not, our North Dakota Constitution does not, clearly take away that power, that was in the Constitution for most of the 20th century. And this is a fundamental right of the people..

Chief Justice VandeWalle: Now wait a minute, you say take away, you say take away. With no provision on recall, there's no recall under a state constitution. You don't start with the default position that there is recall and it has to be taken away.

But Chief Justice, it was in there for 50 years. It was expressly in there for fifty years.

Chief Justice VandeWalle: And that's part of the problem, that we're having, I think, is what happened during the change.

W-, and Your Honor, it should not be done by sleight-of-hand. I mean, if somebody wanted to take that power, that was expressly in there for 50 years, and

Chief Justice VanderWalle: Well, I read to you out of the Constitutional Convention of 1972, and what their rationale was -- you may disagree with their rationale -- but that was it. If indeed, when it subsequently was submitted again, the people that submitted it said we are resubmitting what was rejected by the people in 1972, where are we? In looking at what the intent was?

Your Honor, even in that legislative history, it's not clear enough, the wording, the wording is 'any elected official of a legislative district.' A senator, a congressman, are elected officials of a legislative district. This is like sovereign immunity. Courts are very clear, that if you're going to sue the government, and you're going to ask them to pay damages, you can only do that if the sovereign has clearly and expressly waived his immunity. And it's the same thing here, what we have in the Constitution: 'all political power is inherent in the people.'

Chief Justice VandeWalle: So you start with the default position that they have the recall authority unless it's taken away. I mean --- counsel, if you're saving five minutes, I don't want to impose on your time. You are saving? Five minutes?

Yes.

Chief Justice VandeWalle: All right. Thank you.

Thank you, Chief Justice.

Intermission

Mr. Barr?

(Mr Barr's oral arguments. )

Part two

Justice ???: Thank you, Mr. Barr. Mr. Schlafly, you saved some time.

The text of the North Dakota Constitution is clear, that recall applies to any elected official of any legislative district. It is clear. That does include Senators and Congressmen.

It says any elected official of the state. What about the cases cited by the secretary of state out of the US Supreme Court that says, the cases that say or are quoted for saying members of Congress are not -- well, they don't say they're not -- members of Congress are national officials; officials of the national government?

Certainly members of Congress get their pay-check...

Justice Sandstrom: Well the offices are created by the United States Constitution, not the North Dakota Constitution, aren't they.

And that's correct, Justice Sandstrom, but they're representatives of the people of these legislative districts. So it's a dual sovereignty that's unique in the world, I believe. But they are accountable to the people to whom they represent. And the plain meaning of the North Dakota Constitution: any elected official of the state, of any county or of any legislative, dot dot dot, district, can be recalled. And I'd like to just mention how no one, the appellees, have not addressed, what do we do with a representative who is in jail? What do we do with someone who pulls a...

Justice Sandstrom: Well, what do those states do that have no recall, counsel?

They're stuck. They're stuck.

Justice ???: Yeah, right, so I don't think that that's a work-back argument. I think you have to work ahead. You have to start with a recall -- what happens if you don't have a recall provision is not helpful.

But Your Honor, North Dakota's different. North Dakota's the leader on this issue. In North Dakota, the people can amend the Constitution with a petition signed by only 25,000 people. That's unique in the country. And the irony here, is that

Justice ???: Well, they can get it to a vote.

To a vote. That's correct. But then the people can vote on it and pass it. The irony here, is that if recall were denied to the people with respect to US Senators, the people could initiate a petition drive, to amend the constitution, and lower the threshold for recall officials. It's a pretty high threshold in North Dakota right now. You need 80,000 signatures to recall someone. You only need 25,000 to amend the Constitution. Well if the people are deprived of this power, by this, this less than express mechanism of amending that language, where I think the language is clear, but if it's read in the way that 'uhp, you gave up that power', the people can come back and amend the Constitution.

Chief Justice Vanderwalle: Yeah, so, it, I don't, what's your point?

The point is...

Chief Justice Vanderwalle: Is that a threat?

No, Your Honor, of course not! But if ...

Chief Justice Vanderwalle: I don't...

The point is, in North Dakota, the people have this power. It's in the Constitution. It cannot be taken away from them lightly. It should not be taken away from them lightly. It's inherent in the history of North Dakota that the people have this sovereign power. And while it's true that, in Ohio they were stuck when their congressman was in jail, in North Dakota the people don't have to put up with a senator who's in jail. They don't have to put up with someone who pulls an egregious form of a Bart Stupak, campaigns saying one thing, saying he's pro-life, goes into office and does the opposite. The people of North Dakota do not have to be stuck with that person for six years. There's no other mechanism for removing someone who flouts the will of their people. Sure, the Senate can expel them -- that's not gonna happen. We've seen they don't expel them when they're in jail! They don't have trials when they're brought up on ethics charges. There's no impeachment process. The President has an impeachment process; there's a mechanism for removing the President. But the Senators, the only check and balance on a senator who goes amok and defies the will of the people is this recall mechanism. And the people of North Dakota provided for that expressly for most of the 20th century.

Justice ???: Expulsion is an option.

It's not an option for the people of North Dakota.

Justice ???: But it's an option for removing somebody who is...

If the colleagues, but in the case of Bart Stupak his party's in control of Congress. They're not gonna throw him out. In the case of some of these congressmen that went to jail...

Justice Sandstrom: But there have been United States Senators expelled, and there have been representatives expelled.

Not very often. There have been a few. That's correct, Justice Sandstrom.

Justice ???: All right, thank you, Mr. Schlafly. This case will be taken under advisement, as all cases are, and the Court will be in recess until 2:45.

See also

• Transcript of the Robert Menendez hearing before the New Jersey Supreme Court