Spin Control: Who decides whether a politician’s COVID violations are worth a recall? The courts

The way some local elected officials don’t follow pandemic guidelines has kept the Washington Supreme Court busy in recent months deciding what would warrant giving voters a chance to bounce them out of office for not following COVID protocols.

Based on a series of rulings, it’s clear an elected official can’t be subjected to a recall for criticizing the restrictions and encouraging people to protest them. The justices upheld a trial court’s decision to toss the recall effort against Yakima City Councilman Jason White for criticizing the state’s pandemic restrictions and masking requirements, urging people on social media to disobey them.

White’s comments may have been “scientifically inaccurate and intemperate,” but not the basis for recall, the court said.

Similarly, the court blocked a recall effort against Thurston County Sheriff John Snaza for saying he wouldn’t enforce the mask mandate with criminal sanctions. Deciding instead to have deputies educate people about masks falls within his discretion on how and when to enforce laws, the court said.

But a sheriff could be forced to face voters for failing to enforce valid emergency orders while urging others to do likewise, the justices said in a separate case. It ruled Snohomish County Sheriff Adam Fortney be subject to recall for inciting the public to violate the “Stay Home State Safe” order.

Fortney criticized Gov. Jay Inslee’s order as unconstitutional, said he wouldn’t enforce it and insisted on social media that small business owners had the right to open. At least one business did, a barbershop that opened in defiance of the closure order and had people lining up to get haircuts. A voter could reasonably conclude the sheriff’s words incited people to violate the stay-home order, the court said.

In its most recent ruling, the court ruled last week an elected official can encourage people to protest, despite the state’s pandemic restrictions against large gatherings, without fear of legal consequences. But they could get tossed out of office for bringing protesters into a locked city hall when the building is closed to prevent the spread of the virus.

One is an exercise of free speech, even though elected officials take an oath to uphold the law. The other, however, can obstruct city business and create health and safety problems, the court ruled.

That case involves an effort to recall Kshama Sawant, the socialist member of the Seattle City Council that conservatives love to hate and some moderates aren’t so fond of, either. A group of Seattle citizens is trying to give voters – who re-elected her a year and a half ago despite well-funded opposition – the chance to boot her out of office.

The fact that she unlocked the doors to Seattle City Hall, closed to the public during the “Stay Home, Stay Safe” order, to allow protesters in was one of the charges of malfeasance, misfeasance or violation of oath of office, which are requirements for recall in Washington. Other charges include leading a protest to the front of Mayor Jenny Durkan’s home, a location recall organizers contend Sawant knew as protected under confidentiality laws.

Unlike some states where a recall effort needs only a general dislike of the officeholder and a certain number of signatures to make the ballot, Washington has certain standards. A trial court must determine the charges put before voters are factually and legally sufficient for voters to conclude malfeasance, misfeasance or oath violation. Because most elected officials don’t go quietly, trial court rulings are often appealed to the Supreme Court.

Durkan herself was the target of a recall effort last year over her handling of the summer protests in Seattle, but the high court dismissed that petition in December as not meeting state recall standards. The mayor might have been subject to recall if she had failed to act, but wasn’t just because petition sponsors were dissatisfied with the actions she took that were within her discretion, the court said.

In last Thursday’s ruling, Justice Barbara Madsen drew a distinction between Fortney and Sawant, saying unlike a sheriff, a councilwoman has no duty to enforce the law. A councilwoman also has the discretion to admit members of the public to city hall for a valid city purpose in ordinary times, the justice wrote, but these aren’t ordinary times and they weren’t coming in for a valid city purpose. Sawant knew the building was closed because she had voted to have the council meet remotely, and her explanation that opening city hall was “essential that the power and uprising evident in the streets be seen in the halls of power” wasn’t a valid city purpose, Madsen said.

Voters have the right to decide whether letting the protesters in was an act of organizing her discretion “in a manifestly unreasonable manner or exercised for untenable reasons.”

They also have the right to decide whether Sawant should be removed for leading a protest march to Durkan’s house, revealing an address that’s protected under the state confidentiality program because of her former job as U.S. district attorney. Sawant said she didn’t lead the march but merely spoke at it, and didn’t know Durkan’s address. Recall supporters contended the councilwoman stood in front of the march and it would be a “remarkable coincidence” that the protest wound up in front of the one home in Seattle belonging to the mayor.

Madsen pointed out it’s up to voters, not the court, to determine what’s true. The justice doubted the protest wound up there as a coincidence and, based on the allegations, voters could conclude Sawant did organize the protest, intended to protest at the mayor’s home and went there to deliver a message.

Just because the court says an official can be recalled for his or her actions, doesn’t mean they will. Organizers now have 180 days to gather the needed 10,700 valid signatures in Sawant’s council district to get the recall petition on the ballot. That’s a tough hill to climb. Despite the court ruling that the Fortney recall effort could go before voters, organizers couldn’t get enough signatures to make the ballot.

But the court’s rulings on what’s a valid reason to make the ballot stand as precedent, regardless of whether a recall gets there.