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History suggests bid to recall Alaska legislator Holmes faces uphill battle

Pat Forgey

JUNEAU -- Anchorage voters attempting to recall Democrat-turned-Republican Rep. Lindsey Holmes are awaiting state review of their petition to try to force a recall election.

It took recall proponents nearly a year to gather the necessary signatures, but that may have been the easy part. Whether they can meet the legal qualifications for a recall under the Alaska Constitution may be an even bigger challenge.

If they are successful in their attempt to remove the four-term representative, they'll have done something that no one else in Alaska has ever done: recall a state official such as a governor, lieutenant governor or legislator.

There have previously been successful recalls of local officials, like elected city or school officials.

The Alaska Constitution allows for recalls, but it and state laws establishing the recall process are intended to make recalls difficult -- something allowed only for specific reasons. Those reasons are lack of fitness, incompetence, neglect of duties, or corruption.

Switch angers Democrats 

Holmes won her fourth term in the state House of Representatives last year, and subsequently announced she was leaving the Democratic Party and joining the Republican Party. In the process, she won a seat on the powerful House Finance Committee that Democrats wouldn't give her -- incurring the wrath of her Democratic constituents in Anchorage as a result.

Their list of grievances against her make up their grounds for recall, and revolve around that party switch, and her subsequent alliance with Republicans during legislative debate in Juneau.

"She adopted a political and legislative philosophy voters elected her to oppose," according to proponents of the recall effort.

Deciding whether the recall campaign's grounds will meet the requirements of Alaska’s Constitution will be done by the state Department of Law, said Gail Fenumiai, state elections director.

The Division of Elections is reviewing the more than 1,000 petition signatures submitted to see if they meet the requirement of 808 valid signatures. If the recall petition is certified, the organizers will then have to collect 2,020 signatures to get on the ballot. That's about 25 percent of the votes cast in the last election in the district Holmes represents in the Legislature.

Metcalfe: Be ready for Supreme Court 

One person who has attempted to use the recall law has already given some advice to the Holmes recall effort. "They're going to turn you down, you have to be ready to go to the Supreme Court," said Ray Metcalfe, a former Republican legislator who sought to use the recall process against one-time Senate President Ben Stevens, alleging that Stevens’ consulting for VECO Corp. amounted to corruption.

Metcalfe said the recall process, as used in Alaska, allows public officials to place their judgment above voters when it comes to deciding what is neglect of duties or corruption.

"Who is the interpreter of what actions constitute the evidence for any one of those reasons?" he asked. It should be the voters, Metcalfe said, adding that he suspected the Supreme Court would agree.

The Alaska Department of Law in 2005 didn't agree with Metcalfe about what constituted corruption in the Stevens case.

In 2011, the Department of Law rejected another recall petition, from Ketchikan Republicans who sought to recall then-Rep. Kyle Johansen. He had walked out of the Republican-led House Majority Caucus in a dispute about the role of another legislator. Johansen even gave up his Majority Leader position in an unsuccessful attempt to win a plum committee assignment for Rep. Charisse Millet, R-Anchorage.

That left Johansen unable to advocate for his constituents, and amounted to grounds for recall, said Republican leaders in Ketchikan.

But in rejecting the petition, the state said that Johansen's decision to give up his Majority Leader position didn't meet grounds for recall, as there is no requirement that legislators ever serve as Majority Leader.

Local Republican Party Chair Dick Coose disagrees with the Department of Law's opinion.

"I still think we had a case -- and we had the signatures -- but getting all the legal people to bless stuff is sometimes a challenge," he said. Coose said that while he believes Johansen's actions were grounds for recall, he said their petition, written without the help of lawyers, simply didn't explain well enough why Johansen’s actions merited a recall.

"I regret to say this, but you need to get a lawyer to make sure the right words are there in the right order," Coose said.

Recalls not made to be easy 

But recall is supposed to be difficult, and can't be used just because some constituents don't like some actions of elected leaders, state officials said. "Only true and manifest malfeasance should be subject to recall," according to then-Attorney General John Burns, who advised Fenumiai to not certify the Johansen recall petition.

Holmes recall sponsor Wigi Tozzi said the Stevens, Johansen and other rejected recalls aren’t identical to the Holmes recall, and shouldn't prevent the state from certifying this recall effort. "We're not really concerned about history,” Tozzi said.  “Every case is different."

The difference here, he said, was that Holmes technically disqualified herself by changing her party registration before beginning her new term as a Republican. That's as if she'd changed her residence to outside the district during the campaign, making her ineligible to run, he said.

Once in office, Tozzi said, Holmes voted against the wishes of her district, and voters there should be able to decide whether she should still represent them.

"Honestly, none of that really matters,” he said. “What matters is she went through the entire election telling people she was a Democrat, raising money, mostly from Democrats, pretending she was a Democrat, and then changing party so she could get a committee assignment," he said.

Holmes praised by GOP

Holmes, a lawyer herself, declined comment, but Republican leaders have praised her role in their caucus and said her work resulted in benefits for her Anchorage district.

While most recall petitions have been rejected, not all have, Tozzi pointed out. State officials approved a recall petition for then-Sen. Scott Ogan, R-Palmer, in 2004. Ogan was accused of using his legislative position to assist a company that employed him as a consultant. Ogan resigned before an election could be held.

Neither Stevens nor Johansen retained their seats for long. Stevens did not run for re-election, while Johansen pulled in only 9 percent of the votes in his re-election bid last year.

Contact Pat Forgey at pat(at)alaskadispatch.com