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Elections Thu Dec 17 2015

Recall: What Could Happen Next?

2017 recall ballotA lot of Chicagoans want to see Rahm Emanuel's second term as mayor end prematurely. Weeks after the release of the Laquan McDonald dashcam video, calls for Emanuel's resignation have not slackened, and one published poll shows an outright majority of Chicagoans favoring such a resignation. Emanuel has been adamant that he will not resign. In turn, some have looked for some other process by which he might no longer mayor.

The leading contender for such a process is House Bill 4356, introduced by State Rep. La Shawn Ford (D-8). HB4356 provides for a mechanism of recalling the mayor by public election. HB4356 now has five co-sponsors -- perhaps fewer than might be expected, but perhaps more given that the legislature is out of session. While the Tribune took a look at HB4356 this week, publishing what was essentially a hatchet piece, even that article suggests the idea is at least going to stick around for a while.

My take is different from the Tribune. I think recall legislation, whether in the form of HB4356 or some other bill, has a decent shot of passage. It has already lined up some interesting co-sponsors, and prominent politicians such as Lisa Madigan and Pat Quinn have come out in favor of recall at least conceptually. I think it's extremely unlikely that Rahm Emanuel will ever be recalled, but that will not stop legislation from proceeding. The credible threat of recall is important enough that enough political operators will allow it to stay on the table.

HB4356 is of course subject to amendment, and competing bills could also be introduced that would offer different processes. Still, even though it is a largely speculative exercise to consider all of the permutations of how recall legislation might proceed, it is worth stepping back and regarding some of those possibilities. Key distinctions regarding different processes may lead to significantly different results in terms of who might replace Emanuel -- even if no recall ever takes place. The details of pending and prospective state legislation could therefore be of critical importance for the fate of not only Emanuel but the entire city.

What Constitutes a Vacancy in Office?

Conceptually, there are numerous different ways by which Emanuel may be out of office before 2019. Some of these are very similar in effect and can be grouped together. For the purposes here, I am ignoring possibilities which are not especially relevant, except insomuch as they help provide context to the intent of the law as written. (For reference, the mechanisms currently in effect can be found in Section 3.1-10-51 of the Illinois Municipal Code.)

Death or Disability. These are fairly straightforward. If you're no longer alive, you're no longer in office. (You can insert your own joke here about still being able to vote.)

Formal Resignation. This is also fairly straightforward. If you formally resign, you're no longer in office.

Disqualification. This covers multiple similar scenarios such as "abandonment" (one example of which would be moving outside of the city), which mostly aren't too interesting to us. But this also covers certain criminal situations, specifically pleading guilty to or being convicted of a felony.

Existing state law covers all of the above scenarios, and also includes provisions for how such a vacancy would be filled. First, the sitting vice-mayor would temporarily assume the role of mayor. Currently, the vice-mayor is 42nd Ward Alderman Brendan Reilly. Next, the City Council would select, from their own ranks, an individual to serve as acting mayor. Under current law, the acting mayor would remain in place until the next regularly scheduled municipal elections in 2019 (unless the acting mayor were also to vacate the seat for any of the aforementioned reasons.)

Other mechanisms by which a vacancy might be created are at this time either formally proposed or merely conceptual.

Legislative Removal. In effect, this would mean that the City Council would vote to remove the mayor from office for cause, where "for cause" would ostensibly mean a nefarious action that, at least for the time being, has not yet resulted in a conviction. This mechanism has not been widely discussed, and may not manifest itself, for the simple reason that Emanuel has not been charged with any crimes.

Recall Election. While there is no existing legal mechanism for this, State Representative La Shawn Ford (D-8) has introduced House Bill 4356, which would provide such a mechanism. As currently written, and using the numbers from the 2015 election, recall would require the submission of a petition with 88,610 valid signatures (effectively requiring at least 200,000 raw signatures), followed by an election to consider the question of whether the mayor should be recalled. Neither the petition nor the election ballot would specify any "cause"; ultimately, if things got all the way to a recall election, the matter would come down to whether or not voters simply wanted a new mayor, regardless of whatever their personal reasons might be.

House Bill 4356 and Other Potential Recall Procedures

The provisions currently in HB4356 are the ones most likely to eventually go to vote, for the simple reason that they constitute a starting point. The likelihood, though, is that if the bill does pass, it will be amended somehow. Such an amendment could be minor, or it could be very expansive. For our purposes, we will consider the provisions in the existing bill, and some of the more likely changes to those provisions, introduceable either through an amendment to the bill, or through the introduction of one or more completely new bills.

As currently written, HB4356 calls for tiered elections to be held in the event that an incumbent mayor is recalled. Similar to how the regular municipal elections currently work, there would first be an election, and if no candidate receives an outright majority, then there would be a runoff election. Until such time as a candidate receives an outright majority, the vice-mayor would assume the mayor's duties, and no separate acting mayor would be selected by the City Council. This last part is significant, because the existing legal process for filling a vacancy does not contain any provision for a new election. A very logical amendment to HB4356 would be one which provided for a replacement election in the event of any vacancy that might occur sufficiently in advance of the next regularly scheduled municipal election.

Such a change would be consistent with how most vacancies in Illinois are handled, and with how the last mayoral vacancy in Chicago was handled. In November 1987, Harold Washington passed away just a few months into his second term. Although no law on the books explicitly provided for a short-term election, the matter went to the courts, and the courts found that the combination of then-existing state municipal code and determinable legislative intent required that a special election be held. At that time, Chicago's mayoral election was still partisan, though since no Republican had been elected mayor of Chicago in decades, the election that really mattered was the Democratic primary. Richard M. Daley defeated the acting mayor, Eugene Sawyer, in the primary, thus beginning his 22 years on the fifth floor of City Hall.

The tiered approach called for in Ford's bill is also interesting and potentially subject to change. For one, three rounds of special elections would be very costly. One simple solution here -- and one which arguably should be applied for all Chicago municipal elections going forward -- is to replace the two-tiered election-and-runoff model with a single Instant Runoff Voting (IRV) election. IRV is a specific type of ranked choice election, where voters do not simply vote for one candidate, but instead assign preferential rankings to one or more candidates. FairVote has put together an excellent primer on ranked choice voting. In short, IRV largely solves the problem of "first-past-the-post" elections where a candidate can win with a tiny percentage because there are a large number of candidates, while also saving taxpayers the expense of paying for a second full election, which would cost millions of dollars. If ever there was a time for IRV to get its foot in the door in Illinois, this is it.

The most interesting aspect of the three-tiered process is that the recall vote itself would be separate and distinct from the subsequent election(s) to choose a replacement. This approach varies from that employed in the the two best-known recall votes held in the United States this century: the successful recall of California Governor Gray Davis in 2003, and the unsuccessful recall of Wisconsin Governor Scott Walker in 2012. The circumstances of those recall votes are worth considering at some length as they may offer insight into what could happen in Chicago if things get that far.

The recall process in California involved two parallel votes on the same ballot: the first a Yes/No vote on whether to recall Davis, and the second a winner-take-all vote which would have effect only if an outright majority voted for recall. The California law had a particularly unusual provision, though, whereby would-be candidates could get on the ballot with very few petition signatures and/or a filing fee. The result was a circus, with 135 candidates on the ballot. Davis lost the recall vote, and the new governor was Arnold Schwarzenegger, even though he was a Republican in an overwhelmingly Democratic state. Davis had only won reelection in 2002 with 47.3% of the vote, so the 55.4% Yes vote to recall him was not especially out of step with the preceding election. The 47.3% Davis won is actually higher than the 45.6% Emanuel won in the February first round, suggesting that Davis could be a precarious example for Emanuel.

The process was different in Wisconsin. Instead of a two-vote ballot like in California, or a tiered process as provided for in Ford's bill, the Wisconsin recall election was essentially just a do-over election. The actual vote was simply a vote with only two prominent choices, Walker and Democratic opponent Tom Barrett. In 2010, Walker had defeated Barrett 52.3% to 46.5%. In the recall election, Walker won 53.1% to 46.3%. Ultimately, the recall vote wasn't explicitly a referendum on Walker, because there was no separate Yes/No vote, and Barrett was the same lackluster candidate the Democrats had just run. Emanuel ultimately feels much closer to Davis than to Walker.

Unlike those recent examples, the process in HB4356 calls for a single Yes/No vote to be held separately from a replacement election. This means that the vote would be a straight-up referendum on Emanuel, an opportunity for voters to come out en masse to eject a man very few of them actually like, and make history in the process. That would not bode well for Emanuel. It is possible that Ford's bill will be amended to create a process somewhat more similar to California's, whereby the recall vote would be simultaneous with the first-round replacement election. Then voters would be voting not just on Emanuel's fate but also simultaneously on who would replace him -- and if they didn't prefer the available options, such a process could work more in his favor. If the IRV option is not pursued, then the issue of funding three separate elections might well compel an amendment combining the recall vote and first-round replacement vote on the same ballot.

It should also be noted that HB4356, as currently written, pertains only to the office of mayor of Chicago. If the General Assembly sees fit to move on such a recall mechanism, then they would presumably also see fit to establish a mechanism for recalling a Chicago alderman, and, in turn, perhaps also statewide officers, and maybe also municipal and other local elected officials for cities other than Chicago. Whether such additional provisions are liable to be added to Ford's bill, or introduced as separate bills, may ultimately impact whether any recall mechanism at all passes. As we'll explore below, prospective amendments or new bills may emerge due less to any kind of democratic principles than to political considerations.

For those wondering if any legislation at all can be passed for the situation at hand, not only is it possible, but recent history demonstrates that Illinois will definitely do such things. While the U.S. Constitution specifically prohibits ex post facto laws, HB4356 would not establish a retroactive effect; it would instead provide for a recall process which could be employed in the future. This is admittedly a point of some contention -- the Tribune article cites House Republican leader Jim Durkin (R-82) as questioning the applicability of such a law -- but anyone who expects that the overall recall process might somehow avoid involving the courts clearly hasn't lived in Illinois very long.

As for recent precedent, in December 2014, State Comptroller Judy Baar Topinka died shortly after having been reelected. The law in effect as of that time gave the incoming governor the ability to appoint a replacement who would then serve out the entire four-year term. Because Topinka was a Republican, this meant that incoming Governor Bruce Rauner would have been able to appoint a Republican of his choosing to fill the entire four-year term. In light of this, the Democratic leadership in Springfield scrambled, introducing and quickly passing a bill which provided that in such an event, a state office would go up for reelection as a two-year unexpired term in the subsequent presidential election year. Elections to fill vacancies for partial terms are actually quite common in Illinois for numerous down-ticket offices, so the new law was not out of step with common practice. But if the situation would have been different -- a Democrat passing away, a Democratic governor coming in, with the Democrats in control of the General Assembly -- it's hard to imagine the same law would have been passed.

Would the General Assembly Actually Pass a Recall Bill?

As of Dec. 16, a week after the bill's introduction, it has five co-sponsors. Ford and Mary Flowers (D-31) are both African-Americans representing West Side and South Side districts, respectively. Jaime Andrade (D-40) is Latino and represents an Albany Park-centered district. His inclusion is noteworthy, because having initially been appointed to his position through his connection to long-time Democratic boss Dick Mell, Andrade showing up here suggests that Democratic powerbrokers may be okay with recall, at least for mayor. (Andrade signing on may also just be taken as a sign that he is feeling pressure in his reelection campaign against progressive Harish Patel.)

The other co-sponsors are perhaps the most interesting ones. Jeanne Ives (R-42) represents a Wheaton-based district. Ron Sandack (R-81) represents a Downers Grove-based district, is the House Republican floor leader, and is closely allied with Governor Rauner. The discussion at Capitol Fax, referencing the Tribune article, emphasizes that Republican leaders are "not enthused," yet the same article itself clearly suggests that some Republicans would be on board.

In 2008, the General Assembly considered a pair of bills which would have sent to voters proposed constitutional amendments providing for recall of statewide officers and state legislators. While both died in the Senate, they both had majority support; putting constitutional amendments on the ballot requires a 3/5 super-majority, though. Still, if an outright majority of state senators was willing to advance legislation which would have provided for the ability for they themselves to be recalled, it is not hard to imagine a similar majority passing a bill dealing solely with the mayor of Chicago, or perhaps all municipal offices in Chicago. It should also be emphasized here that even if calls rose to include recall provisions for state offices, such provisions would require amending the state constitution, so that would have to be taken up in a separate bill anyway.

The main powerbrokers are the usual suspects here: Rauner, Speaker of the House Michael Madigan and Senate President John Cullerton. Rauner's office has declined comment, but if a bill makes it all the way to his desk, political calculation could very likely overcome his personal friendship with Emanuel. Madigan himself hasn't commented, but his daughter, Attorney General Lisa Madigan, has come out in favor of recall procedures for mayor and other positions, albeit without also saying that she thinks Emanuel should be recalled. Her comments can reasonably be considered a proxy for her father's, sufficient to suggest that the elder Madigan will be content to sit back and let the situation develop further, and may even be willing to let it pass as is. The Tribune reports that Cullerton, the closest political ally of the three, is firmly in opposition. But Cullerton is also the least important of the powerbrokers. If any legislation gains enough steam, Cullerton may simply step out of the way instead of trying to stop the train himself.

An unusual consideration is that, should HB4356 get to Rauner in substantially its current form, he would have the ability to use his amendatory veto to add additional offices which would be subject to recall. Rauner did run on a platform of "shaking up Springfield," and led with an aggressive effort to establish term limits for the General Assembly. It could be a simple, and potentially fruitful, political move for him to personally add Chicago aldermen alongside the mayor as potential subjects of recall. Rauner might even find it politically expedient to champion broader recall provisions, including ones that could ultimately make even himself subject to recall. While proponents of term limits and recall procedures don't always overlap, they often do, even if the reasons for supporting one reform or the other aren't always the same.

Of course, beyond high-level political implications, and notwithstanding new unexpected developments (such as Emanuel suddenly resigning), the ultimate success of Ford's bill may simply have most to do with the prevailing mood of the electorate. If new evidence emerges suggesting that Emanuel knew more about the Laquan McDonald video than he has claimed, while it might not ultimately qualify as any kind of criminal action, it might nevertheless push the public yet more strongly in the direction of wanting to see him gone. In turn, the pressure on legislators to give the public the recall option may overwhelm other considerations. If instead, a month from now, the holiday season has provided Emanuel with a cooling off period, the public retreats to a mentality of thinking there is little to be done, and the issue gains little traction in any of the March legislative primaries, the bill would likely just die on the vine in Springfield without ever being called to a vote.

The heat shows no signs of flagging, though. In an attempt to gain a much-needed photo-op, Emanuel went to Urban Prep in Englewood on Wednesday to talk about federal funding for a program which would create "My Brother's Keeper Cabinet." The occasion went awry when Urban Prep students chanted "16 Shots" -- a reference to the number of times Laquan McDonald was shot by Jason Van Dyke. The photo-op was such a failure that the lead Tribune article didn't even bother mentioning why Emanuel was at Urban Prep in the first place. And this was at a charter school. If that could happen there, and this is how the media is going to portray it, even the holiday season isn't going to bail the mayor out.

In short, Emanuel stands little chance of thoroughly rebuilding his reputation over the next few months. HB4356 will certainly pick up more sponsors when the new legislative year begins in January, and with several legislators facing primary challenges, recall will be a hot issue in the March elections -- possibly an even hotter issue than the ongoing budget disaster. Michael Madigan knows better than to block the bill under the circumstances. Ford deserves credit not just for introducing his legislation, but for how he's managed its PR to date. HB4356 will have legs, and if Ford continues to be shrewd -- perhaps adding in a well-crafted amendment fixing the resignation vacancy loophole, and also perhaps in expanding the bill to at least include Chicago aldermen -- the bill is headed for a full House vote at bare minimum relatively early in the legislative term.

If a recall bill does make it all the way out of Springfield, it would only happen if Emanuel remains under fire for months. In such a situation, his ability to run the city would be greatly compromised. With compounding factors such as the financial disaster at Chicago Public Schools, the real potential for another Chicago Teachers Union strike, and a Department of Justice investigation into the Chicago Police Department only just starting, even Emanuel would be likely to resign before a formal recall process could get going. But even here, pursuing the recall bill may ultimately have the real intended effect. If recall were to be off the table, that would relieve at least some pressure from Emanuel. Even in a weakened state, he still has his largely rubber-stamp City Council. He could simply ride things out until 2019. The mere threat of recall, though, helps to keep the pressure on him specifically. That threat is too potent for other politicians right now.

Expect HB4356 to persist, and expect to see some amendments at least proposed. Expect to see discussion about expanding recall to other offices, perhaps in the form of other bills. Don't expect this crisis to subside any time soon. Emanuel's nature will be to fight, and fight hard, to regain his standing, but he has more frenemies than friends. It is ultimately more expedient for those people to leave him twisting in the wind. That, after all, is precisely what Emanuel would be doing to them.

The odds would seem to be that Emanuel ultimately survives for the full term. But the odds were also very much against him being forced into a runoff in February. If the combination of a widening DOJ investigation, further deep investigative journalism, and stronger organizing in opposition to him should come to pass -- and all of these things are eminently possible -- then all bets are off. For now, people who want to organize to see Emanuel go are well-advised to get on board with the recall bill effort. It is the most direct pressure point, and one where people are most likely to get tacit support from other Powers That Be. HB4356 may well be amended, or usurped by some other bill, but the recall issue is alive and well, and should continue to be for months to come.

 
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Kathy / December 17, 2015 4:04 PM

Keeping the fire going will make the soup boil.

Whooseywhat / December 18, 2015 8:55 AM

When Harold Washington died in Nov 1987, a special election was held in 1989. If Rahm was to resign right now or in 'X' amount of time, I believe the same would apply and a special election could be held in 2017.

Pat / December 26, 2015 10:35 AM

While it is true that he inherited Daley's financial blunders, he has done nothing to remove them. If anything, he has been the most financially oppressive mayor to the people of Chicago. His actions speak volumes. He is now laying low, hoping the heat will blow away. Let our actions speak volumes too & keep up the pressure & the effort to remove this man from office. For him to say he knew nothing of the coverup is to question our intelligence & a slap in the face. He does not care one whit about how we feel. He only cares about retaining power & control. I shudder to think what he has in store for us considering how well the controlled media hid both his record as well as his father's. Google it & read for yourselves. Many died.

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