Washington Voters Used Their Constitutional Recall Power to Remove School Board Members

In August, Washington State voters recalled three school board members who made masking in a district’s public schools optional even though state law at the time made masking mandatory. The recall effort took more than a year and resulted in the state supreme court making an important decision interpreting the state constitution’s guarantee that citizens can recall elected officials. The case demonstrates the promise of such provisions, potential hurdles to using them, and the difficult balancing act between stability and popular control of government.

Impeachment vs. recall

Broadly speaking, there are two methods of removing elected officials other than legislators. The first is the impeachment and removal process, which the federal government uses, and which nearly all states have in some form. Typically, a state house of representatives can vote to approve articles of impeachment for illegal or egregious misbehavior. This is like how a prosecutor can bring criminal charges against a defendant. State constitutions then generally require a supermajority of the state senate to convict the official and remove them from office. The impeachment model has received criticism for making it too difficult to remove officials for incompetence or acting against the will of voters. 

The second is the recall model. After enough residents sign a recall petition to trigger a recall election, voters can remove an official themselves. Nineteen states allow some form of recall, which became an option during the Progressive Era in several places. Most recall elections happen at the local level and involve officials like school board members or city councilors. Perhaps the most famous recent example of voters removing a high-level official came in 2003 when California recalled Gov. Gray Davis and elected Arnold Schwarzenegger in his place. Recall provisions in state constitutions have received criticism for undermining the independence of elected officials and potentially giving them too little time to govern.

Although state recall provisions have many similarities, there are also important differences. Some states have higher thresholds than others for how many residents must sign a recall petition before it can be submitted to voters. Some states allow voters to pick a successor at the same time they vote on recall while others allow the governor to appoint a successor. Several states prohibit voters from recalling judges while others allow voters to do so. Some specify reasons why voters can recall an official while others allow removal for any reason. Finally, some states give judges a more active role than others in the recall process, such as allowing them to reject recall petitions before they go to voters. 

Washington State imposes more stringent requirements on recall efforts than most states do. Unlike other constitutions that allow recall for any reason, Washington’s constitution specifies that recall is only appropriate when an official “has committed some act or acts of malfeasance or misfeasance while in office, or who has violated his oath of office.” In addition, Washington State gives judges a broader role in reviewing recall petitions than many other states do. 

Mask wars and the Washington Constitution

In February 2022, an emergency executive proclamation mandating masks in public schools remained in force in Washington State. School board members in the Richland School District therefore received legal advice that they could not make masking optional in their local schools. Yet, after one effort to make masking optional failed, the board called a special meeting for February 15, 2022, and listed only one item on the agenda: “Resolution No. 940—Local Control.” A majority of the board then voted not to require masks in the district’s schools any longer. The board retreated and voted on February 17, 2022, to stop requiring masks only on the same day the governor’s emergency proclamation expired. 

A group of Richland voters were angry enough about the board’s behavior that they filed a petition two months later to recall the three board members who voted to make masking optional in defiance of the governor’s order. But a petition is merely the first step to a recall in Washington State. Before voters can weigh in, a statute charges courts with deciding whether a petition is “legally sufficient.” Washington State courts have worked to define exactly what that means. At a minimum, petitions must identify a standard, law, or rule, which makes an official’s conduct deserving of removal, provide enough facts for officials to respond to them and voters to evaluate them, and demonstrate a reasonable investigation into the allegations made. 

Essentially, judges serve as gatekeepers before a recall petition goes to voters just as they serve as gatekeepers before a case goes to a jury. They assess recall petitions using similar standards to those they use to decide whether a complaint in a civil case is detailed enough to provide a defendant adequate notice, and whether there is an obvious reason it should be dismissed. Judges also require voters to demonstrate that they have support for their allegations and have investigated them before filing the petition, just as they require litigants to do in civil cases. Voters are supposed to make the final call about whether to believe a petition’s factual allegations and whether those allegations justify removal, just as a jury in a civil case decides which witnesses to believe and whether to find a defendant liable.

Taken together, these limits on the removal process aim to strike a balance. On one hand, voters should be able to remove officials without relying solely on an arduous impeachment process that could be captured by intransigent politicians or special interests. On the other hand, it would be a poor use of an official’s scarce time to respond to frivolous recall petitions instead of governing. Government instability could result from a culture where costly recall petitions happen every time an official makes a decision some voters disagree with.

The court’s analysis reflects an attempt to navigate this tricky balance. After almost a year of litigation, the court found that the petition had adequately alleged that the board members violated a transparency law by not making it clear ahead of time that they would be voting to make masks optional and that they violated the law by defying the governor’s order. Voters could therefore decide whether to remove the members for these reasons. 

However, the court also held that the petition’s allegation that the board members should be removed for violating the school district’s code of ethics was inadequate. That was because the code of ethics didn’t give rise to a clearly defined binding duty on board members and the voters didn’t allege that the school board members behaved in a “manifestly unreasonable manner.” As such, the court didn’t believe that the failure to uphold the code was “malfeasance” or “misfeasance” in this case. When residents vote on a recall petition, they see the specific charges the recall petition made against the officials listed on the ballot. The consequence of the court’s ruling was that the ballot voters saw in August didn’t include the allegations that the officials had failed to follow their ethics policy. Instead, it included the allegations that they had violated the law. 

In the end, Richland residents voted to recall the members. Voters have sent a message to local officials about transparency and the need to take public health challenges seriously. The court has sent a more uncertain message. It is clear that voters can recall officials when they make serious allegations of unlawful conduct. It is unclear under what circumstances short of illegality that voters can recall an official. The court explained that “a recall charge can be based on conduct that is not unlawful but does violate the official’s duties.” But then it found the parts of the petition that alleged failure to comply with ethical standards inadequate to go before voters. What will it take to show that an official behaved in a “manifestly unreasonable manner?” The court provided no definitive answer. Ultimately, those filing a recall petition must prepare for the reality that judges may play as important a role in the recall process as voters. 

Marcus Gadson is an assistant professor of law at Campbell University, where he teaches state constitutional law.