Alaska’s Gubernatorial Recall Laws After #RecallDunleavy

February 7, 2022

By: Ellie Halfacre

The only recall petition filed against the state’s governor in Alaska’s history was unsuccessful. When looking at the history of gubernatorial recalls in the United States, this is unsurprising: four governors have faced recall elections, and only two have ever been recalled.

In July 2019, Recall Dunleavy campaign organizers hoped to change that. After one year in office, Alaska Governor Mike Dunleavy used his veto power to cut $444 million from the state’s budget. This move, which would have defunded the state’s university system by 41 percent and reduced Medicaid funding, led to a “political mess” among legislators. In response, Alaskan citizens began a petition campaign to recall Gov. Dunleavy from the governor’s office.

Under art. 11, §§ 1–8 of the Constitution of the State of Alaska, §§ 15.45.470–720 of Alaska Statutes, and tit. 6, § 25.240 of Alaska’s Administrative Code, there are three basic steps to recalling the governor: application, petition, and election.

Alaska has “perhaps the most unique recall law in the country” according to Joshua Spivak, a senior fellow at the Hugh L. Carey Institute at Wagner College and the author of “Recall Elections: From Alexander Hamilton to Gavin Newsom.” First, recall campaigners must collect signatures representing 10 percent of qualified voters in the preceding general election in the state in order for the Director of the Division of Elections to even certify the recall. (For the Recall Dunleavy petition, that meant 28,501 signatures.) Then, if the recall is certified, the recall committee collects signatures of qualified voters in the state equal to 25 percent of those who voted in the preceding general election.

Second, the state requires specific grounds for recall of a state official –– lack of fitness, incompetence, neglect of duties, and corruption –– to be described in the petition in under 200 words. Considered a “malfeasance” or “judicial recall” standard, the law requires the petitioner to show, and an agency or court to hold, “that a specific, statutorily delineated bad act was performed by the elected official.” Spivak also wrote that this requirement is different from the traditional malfeasance standard because the Alaska Supreme Court has held that, for local offices, the standard “should be liberally construed so that the people are permitted to vote and express their will.” However, the liberal construction of the recall standard had not yet been applied at the state level prior to the Recall Dunleavy movement.

Recall Dunleavy submitted its petition to be certified with 49,006 signatures on Sept. 4, 2019 with four stated grounds for recall:

• Governor Dunleavy violated Alaska law by refusing to appoint a judge to the Palmer Superior Court within 45 days of receiving nominations.
• Governor Dunleavy violated Alaska law and the Constitution, and misused state funds by unlawfully and without proper disclosure, authorizing and allowing the use of state funds for partisan purposes to purchase electronic advertisements and direct mailers making partisan statements about political opponents and supporters.
• Governor Dunleavy violated separation-of-powers by improperly using the  line-item veto to: (a) attack the judiciary and the rule of law; and (b) preclude the legislature from upholding its constitutional Health, Education and Welfare responsibilities.
• Governor Dunleavy acted incompetently when he mistakenly vetoed approximately $18 million more than he told the legislature in official communications he intended to strike. Uncorrected, the error would cause the state to lose over $40 million in additional federal Medicaid funds.

The Director of the Division of Elections denied certification of the application on the basis that it did not factually or legally satisfy any of the four grounds for recall. It did, however, meet the technical requirements. In response, the campaign to Recall Dunleavy filed a lawsuit to appeal the decision. The Superior Court judge ruled against the state on appeal and ordered the Division of Elections to issue petition books to the group, only to stay his own decision until the Alaska Supreme Court reviewed the case.

In May 2020, the Alaska Supreme Court affirmed the Superior Court’s ruling and empowered the recall campaign to continue its efforts to reach the 71,252 signature requirement. In March 2021, Gov. Dunleavy expected the recall election to be held over the summer.

However, the decision in State v. Recall Dunleavy was not published until July 2021. The decision clarified that the group satisfied the legal requirements under art. 11, § 8 of Alaska’s Constitution, met the appropriate notice pleading standard, and met requirements for legal sufficiency, particularity, and clarity.

“This is the first time in US history that a recall has been allowed against a Governor in a malfeasance standard state,” according to Spivak.

The decision stated that the people asked to sign the petition, not the justices, must judge “the seriousness” of each ground, while the court “is to determine whether the recall application’s allegations are legally sufficient and are particular enough to give the targeted official fair notice of the claim.”

Gov. Dunleavy released a statement claiming that the decision “creates a standardless recall process, subjecting elected officials at every level, and across the political spectrum, to baseless, expensive, and distracting recall elections by their political opponents.” He also called on the legislature to change the recall laws in response.

Of the 71,252 needed, the group collected 62,373 signatures for the recall by August 21, 2021. However, after a two year push, the campaign to recall Gov. Dunleavy ended in August 25, 2021 and called on Alaskans to “rededicate their efforts to denying Dunleavy” a second term. Gov. Dunleavy will run for reelection in November of 2022.