The Alaska Supreme Court released its final order in the state of Alaska's legal challenge to Recall Dunleavy, the campaign to remove Gov. Mike Dunleavy from office. On Friday, just over a year after the Supreme Court upheld a lower court ruling siding with Recall Dunleavy, the Court released its order explaining that decision. The impact of the order extends beyond the Recall Dunleavy case and will likely have implications for future recall efforts.
The order gives an overview of the history of recall campaigns and provides thorough justifications for the four grounds for recall the Recall Dunleavy Campaign listed. These include lack of fitness, incompetence, neglect of duties and corruption. Both the Superior and Supreme courts sided with defendant Recall Dunleavy on all four grounds, determining that the recall was legally sound.
The Supreme Court rejected the state’s argument that the Division of Elections and courts should review specific allegations to decide which are serious enough to move forward.
“More generally, the State argues that the Division [of Elections] and reviewing courts should act as gatekeepers to determine which allegations are serious enough to be presented to voters,” the order states. This idea is mistaken as the Supreme Court determined that power should rest with voters.
“... it is for the voters — not the Division or the courts — to judge the seriousness of an alleged ground,” the court ruled. The job of the court is only to determine if a claim meets the legal grounds for removal for office, according to the order.
Another focus of the ruling is the relationship between the governor's veto power and the separation of powers. Recall Dunleavy lists two specific vetoes in their argument: the $40 million in Medicaid funds Dunleavy mistakenly vetoed and $334,700 he cut from the Alaska Court System budget after he disagreed with a ruling. The first veto is symptomatic of incompetence, while the second was a politically motivated violation of the separation of powers doctrine, Recall Dunleavy argued. The court agreed.
In terms of the second veto, the court sided with Recall Dunleavy, stating that there are limits to the executive veto power. “... The veto power, though discretionary, may be exercised only within constitutional limits.” One such limit is if the veto encroaches on the court’s authority. The Supreme Court determined that Dunleavy’s veto of court funding undermines the separation of powers doctrine.
Justice Craig Stowers dissented with the ruling in part, disagreeing with the sections about veto authority and the separation of powers. Stowers argued that the separation of powers doctrine is not applicable to the governor’s line-item vetos, citing a lack of constitutional evidence.
“Unless and until the court actually determines that the governor’s vetoes violated the Alaska Constitution, and that the governor did not legally exercise the discretion granted to him by the constitution, he cannot be subject to recall.” According to Stowers, it is actually the court curtailing the governor’s authority.
“The court today creates new limitations on the Governor’s constitutional veto authority,” he wrote.
Stowers’s concern is that the ruling gives too much discretion to the court, which could lead to recalls based on political and philosophical disagreements rather than actual merit.
Gov. Dunleavy echoed that worry in a statement criticizing the decision.
“The Alaska Supreme Court today issued an opinion that creates a standardless recall process, subjecting elected officials at every level ... to baseless, expensive, and distracting recall elections by their political opponents,” according to a statement from Dunleavy’s office.
The initiative to remove Dunleavy from office started in 2019 largely in response to the governor’s massive budget cuts. As of the last update in April, the Recall Dunleavy campaign has garnered more than 80% of the signatures it needs for the initiative to go to a vote. If the effort successfully collects the remaining signatures, the campaign would then send the signatures to the Division of Elections for a review. After this point, the Division has 30 days to verify the petition and then 60 to 90 days to call a special election.
Contact reporter Maisie Thomas at 459-7544.