In Lynchburg, a petition is circulating to initiate a recall of city council member Marty Misjuns.
Misjuns was elected in November’s Republican sweep of the city council that gave the Hill City its first Republican majority in about two decades. Since then, the Lynchburg City Council has carried through with the Republican pledge to cut the real estate tax rate but has also been embroiled in a lot of infighting that has pitted one Republican faction against another. (See my previous column on this.) Misjuns has stood out in several ways. Even before the election, he was suing the city, alleging that he was fired from his job with the fire department for cartoons he posted on social media — cartoons that he says are protected by the First Amendment but that critics say were transphobic. Since his election, he’s repeatedly sniped at the city’s Republican mayor. He criticized the decision to stage “The Prom,” a musical with LGBTQ+ characters, by students at E.C. Glass and Heritage high schools. (That attack backfired; an auditorium that was about half full drew full houses after Misjuns called attention to the show; see our previous story.) More recently, his push to change the city’s personnel policies was derailed by a fellow Republican council member who complained that Misjuns had been “disrespectful” and “offensive” to city staff. This recitation probably doesn’t capture the full flavor of the feelings about Misjuns, from both supporters and detractors.
This, though, isn’t a column about Misjuns — it’s about why the Misjuns recall attempt is potentially unusual, and, more broadly, about recall laws in general.
According to the National Conference of State Legislatures, at least 30 states allow recalls for certain officeholders (it’s more common to allow recalls of local officials than state officials). Virginia is one of those that allows recalls of local officials, but most of us have never seen a recall election in action. The reason for that — and the reason the Misjuns recall petition drive will likely be unsuccessful — is rooted in Virginia law.
In Virginia, recall petitions — if they meet the threshold for the number of signatures — usually don’t trigger an election, they trigger a court hearing. “State law doesn’t let Virginians directly initiate a recall election unless their local government has its own recall mechanism,” the Virginia Mercury wrote last year. A search of the Code of Virginia turns up just four localities that have recall provisions: Hampton, Norfolk, Portsmouth … and Lynchburg.
That means there really could be a recall election, although the procedures are somewhat daunting. Lynchburg’s charter sets out a two-part process. The first part is for the petition drive to submit signatures “equal in number to at least ten percent of the number of voters duly registered on January 1 of the year of the petition eligible to vote for the member or members sought to be recalled.” I don’t know what that number was for Lynchburg on Jan. 1 but the State Board of Elections says that as of July 1 Lynchburg had 55,427 registered voters. Ten percent of that would be 5,542.7, so let’s say 5,543. That’s a lot of signatures.
The petition is supposed to be submitted with “a statement of factual reasons of not more than 200 words of the grounds of the recall.” Once the petition is certified to have the proper number of signatures, the subject of the recall petition is then given 10 days to file “a defensive statement of not more than 200 words.” Once that is done, the clerk of council “shall cause a copy of such petition, with a copy of any defensive statements, to be placed in the office of the general registrar of the city who shall provide facilities for signing the petition and for the proper custody thereof.” There is then a 30-day period when people can go to the registrar’s office to sign a new petition. This time the threshold is “equal in number to fifteen percent of the number of voters duly registered on January 1 of the year of the petition” — which, using our July 1 numbers above, would be 8,314 signatures.
For context: That’s more than three of the seven candidates for three at-large seats in Lynchburg received last year, and nearly as many as the 10,685 votes that Misjuns polled to win office.
Can that be done? Sure. Lots of things can be done. Is it easy to do? No. If those pushing the Misjuns recall petition are successful, it would be quite extraordinary — the first recall election in Virginia in 13 years and just the third overall.
None of the recall provisions in the four Virginia localities that allow recalls are easy; they’re not meant to be. Norfolk and Hampton have a two-part procedure similar to the one Lynchburg has. Norfolk allows petitions to begin with just 300 signatures, but after its two-part procedure is triggered, it then requires a petition with 15% of the number of voters who cast ballots in the last municipal election. Hampton requires initial petitions to have 10% of the number of voters in the last regular council election but then 25% before such a petition goes to the ballot. Portsmouth dispenses with the two-part procedure but requires petitions to be signed by 30% of the number of voters who cast ballots in the most recent gubernatorial election. That would currently be 8,949 signatures.
That’s why Ballotpedia records just two recall elections in Virginia: Portsmouth Mayor James Holley was recalled in 1987 and again in 2010, making him the first person in the country to be recalled twice.
In other Virginia localities, the law requires petitions to have a number equal to at least 10% of the voters who voted for that office in the last regular election — but then those petitions go to a judge, not to voters. There appear to be no known cases of an elected official being removed by a judge, based on a summary of cases listed by Ballotpedia. That’s because state law sets a high bar for removal. It lists several misdemeanor crimes for which an officeholder may be removed, involving drugs, sex crimes or hate crimes. (A felony conviction is automatic grounds for removal, no petition required.) There is then a broader-sounding category: “for neglect of a clear, ministerial duty, misuse of the office, or incompetence in the performance of the duties of the office when that neglect of duty, misuse of office, or incompetence in the performance of duties has a material adverse effect upon the conduct of the office.”
Most recall efforts, though, don’t involve convictions or allegations of “neglect” or “misuse” or “incompetence” — they just involve allegations that people don’t like what the officeholder is doing. “Those claims are almost always dismissed as insufficient, indicating activists and judges have different ideas about what counts as ‘neglect of duty, misuse of office, or incompetence’ that has a ‘material adverse effect’ on the office,” the Virginia Mercury says. Many of the complaints over the years appear to involve simple, though aggravated, disputes over policy decisions or personnel matters, which is not what the recall provisions were set up to adjudicate. In one case, a recall petition was launched against a clerk of court because she had declined to reappoint multiple deputy clerks. In another, a recall petition was launched against four county supervisors because they supposedly couldn’t get along. In a third, a recall petition was launched against a school board member after the school board sold part of the land belonging to an elementary school to use for a cancer treatment center.
Ballotpedia lists 11 recall drives in Virginia last year: in Arlington County, Isle of Wight County, Fairfax County, Loudoun County, Prince William County, Portsmouth and Virginia Beach. None resulted in any elected officials being removed, although one Prince William County supervisor resigned, so those on the recall side effectively got what they wanted there. In the other cases, either petition drives sputtered out or judges dismissed the petition for the reasons explained above. “Not based on facts sufficient to show probable cause for removal” was a favorite phrase of judges.
In 2021, Ballotpedia lists eight recall drives in Virginia: in Arlington County, Fairfax County, Loudoun County, Portsmouth and Virginia Beach. Those ended in much the same way — one school board member in Loudoun County resigned, other attempts were dismissed by judges and failed to even get that far. (And one recall target died before action could be taken.)
Two of those targets the past two years were commonwealth’s attorneys in Fairfax County and Loudoun County; both easily won renomination bids in the June 20 primaries. The one in Fairfax (Steve Descano) is unopposed this fall; Buta Biberaji in Loudoun faces a Republican opponent but has the advantage of being a Democrat running in a strongly Democratic locality.
As a practical matter, it’s very hard to dislodge a Virginia officeholder through a recall. In other states, it’s easier, most notably California and Wisconsin. The Golden State has recalled 16 officeholders since 1995, including Gov. Gray Davis in 2003 (which led to Arnold Schwarzenegger becoming governor). Recall-happy Wisconsin has recalled 23 officeholders since 1977. The most recent recall in the country appears to have been in January in Downey, California, where 90% of those casting ballots voted to remove a council member after it was revealed that she had been convicted in 2014 of welfare fraud. (Perhaps the problem here wasn’t simply that she had failed to disclose the conviction but the fact that the local news media had been so hollowed out that no one was around to do any background checks before she was elected. You can help maintain a vigorous local press by donating to Cardinal. We’re a 501(c)(3) nonprofit that depends on your contributions.)
Recall elections have been around in some form since 1631 in what was then the Massachusetts Bay Colony. The Articles of Confederation allowed states to recall legislators from the Continental Congress. Their more recent iteration, though, was a product of the Progressive Era reforms in the early 1900s. California was the first state to allow recall elections, at the behest of Republican Gov. Hiram Johnson — this was the era when Republicans were often the progressives and Democrats the conservatives.
In more modern times, recalls have been pushed by both left and right, depending on the situation. The recall efforts in Fairfax and Loudoun aimed at prosecutors and school boards have come from the right, but the recall aimed at the Virginia Beach mayor came from the left and the one aimed at Misjuns in Lynchburg is likewise coming from the left. In California, every governor since the 1950s has been the target of a recall drive at some point, although only two — the successful one against Davis in 2003 and an unsuccessful one against Gavin Newsom in 2021 — made it to the ballot. They’re both Democrats; Scott Walker, then the Republican governor of Wisconsin, fended off a recall in 2012.
The number of recall efforts around the country is increasing. In 2022, Ballotpedia counted 261 recall efforts against 437 officials (some are aimed at removing an entire board), the second-highest since the website started tracking such things in 2012. The high was just the year before — 357 recall efforts against 545 officials.
In the six years from 2010 to 2015 in Virginia there were just five recall attempts. In the three years from 2018 to 2020 there were just four. But then in 2021 alone there were eight. In 2022, there were 11. I can only assume that our sharpening political polarization has led to this growing resort to recalls to get the political results we want.
Since 2010, Ballotpedia counts 45 recall efforts in Virginia (it may have missed some because it doesn’t yet record the Lynchburg drive). For what it’s worth, 21 of those were in Northern Virginia, 13 in Hampton Roads. What makes those regions so politically restive? Only one recall attempt was in Southside, a failed 2015 attempt to remove four county supervisors in Halifax County on the grounds that they couldn’t work well together. One of those supervisors is still on the board today. Only one recall attempt was in Southwest Virginia, a failed 2016 attempt to remove Montgomery County Clerk Erica Williams, who had angered some by replacing multiple clerks in the office. She retired earlier this year.
Now, all this history is quite fine — and perhaps even fun for political junkies — but it dances around the big questions: Should we make recall elections easier? Or should we even allow recall efforts at all?
Here are the philosophical viewpoints at odds:
The argument for recalls (and maybe even easier recalls) is that just as we elect people, we should be able to unelect them if we don’t like what they’re doing. A term in office isn’t a blank check; voters should have the right to terminate an officeholder for poor performance just as an employer can terminate an employee.
The argument against recalls is that they are often simply political harassment by people who lost an election. If voters don’t like what an officeholder does, then they can vote against them in the next election. Until then, maybe that officeholder’s presence in office is simply a reminder to voters to be more careful who they elect. (I personally tilt in this direction but that’s just me.) In theory, we as Americans prize politicians who have the gumption to make unpopular decisions — John Kennedy’s Pulitzer-winning “Profiles in Courage” praises eight such examples. In practice, though, we have little tolerance for politicians who do unpopular things.
Politics is full of ironies. Here’s one: In 2021, Misjuns tried to organize a recall petition against then-Mayor MaryJane Dolan. She’s now one of his colleagues.