DU Lawyers, please explain how TX and GA laws allowing gov to remove ELECTED officials

[Eliot Rosewater]

is constitutional?

1. can the law be challenged through FEDERAL courts?

2. if so would it ultimately be decided by US SC?

3. if allowed, what stops them from removing ALL elected officials in their state who are Democrats?

[Silent Type]

1. First off, Georgia's law doesn't allow that. Don't know about Tx. Besides, I'm glad

Brunswick Ga DA who refused to charge Ahamuad Arbery's lynchers was overruled under the old laws.

[Native]

7. I read they passed a new law that allows them to do this and it takes effect in a few months

[Silent Type]

8. It sets up a Commission that COULD result in a DA's removal, like Ahmaud Arbery's racist DA.

I have no problem with a Commision. Georgia has a history of some bad DAs. Sure, they COULD remove every Democrat, but it's just not likely to happen. So unlikely, I'm not going to worry about it.

[Native]

9. Good to hear!

[Effete Snob]

12. But why would a "Commission" make it Constitutional, while a "Governor" wouldn't be?

[Silent Type]

16. Simple, the legislature passed a law giving the Commission the power IF it chooses to exercise it.

You are right, the Governor doesn't have the authority, although I assume the legislature COULD have given him that power. But, they didn't.

[Effete Snob]

17. If the legislature passed a law giving the governor that power, then what's the issue?

Or what if they let the governor pick every member of the commission?

Incidentally, in Florida, the governor can "suspend" the official, but the senate must remove them.

[Zeitghost]

2. Not a lawyer

But the answer is that the Constitution gives the federal government very little power to regulate the way state governments are organized and run.

1. Not Successfully
2. Yes
3. The voters of the States of Texas and Georgia.

[Effete Snob]

13. +1

[MagickMuffin]

3. Florida's DeSantis is doing this, Texas' Abbott is following suit

DeSantis as I recall was the first to disenfranchise the voters by removing from office someone who was duly elected by the voters.

[dsc]

4. After the first removal by DeSantis the federal judge criticized it but said he couldn't reverse

the decision. Florida's law is supposed to be used for cases when there is criminal activity involved or at least extreme neglect of duty. Clearly that needs to be cleaned up and clarified. GA, in theory, is a bit more reasonable.

[Effete Snob]

18. More accurately...

The federal judge thought it might be a state constitutional violation, but couldn't do anything about it.

The federal case was premised on a First Amendment violation:

https://fingfx.thomsonreuters.com/gfx/legaldocs/egpbymwanvq/warren-v-desantis-order.pdf

VI. Conclusion
The Governor violated the First Amendment by considering Mr. Warren’s
speech on matters of public concern—the four FJP policies save one sentence—as
motivating factors in the decision to suspend him. The Governor violated the First
Amendment by considering Mr. Warren’s association with the Democratic Party
and alleged association with Mr. Soros as motivating factors in the decision. But
the Governor would have made the same decision anyway, even without
considering these things. The First Amendment violations were not essential to the
outcome and so do not entitle Mr. Warren to relief in this action.
The suspension also violated the Florida Constitution, and that violation did
affect the outcome. But the Eleventh Amendment prohibits a federal court from
awarding declaratory or injunctive relief of the kind at issue against a state official
based only on a violation of state law.
For these reasons,

IT IS ORDERED:

The clerk must enter judgment under Federal Rule of Civil Procedure 58
stating, “The plaintiff Andrew H. Warren’s claims against the defendant Ron
DeSantis arising under state law are dismissed without prejudice based on the
Eleventh Amendment. Mr. Warren’s claims against Mr. DeSantis arising under
federal law are dismissed on the merits with prejudice.” The clerk must close the
file.

[In It to Win It]

5. For Florida specifically, the answer lies in the Florida Constitution

It grants the governor powers to suspend certain state and local officials.

[Eliot Rosewater]

6. Right, which CANT be constitutional and WILL be and is being abused. So I hope it can be

challenged thru the courts and why hasnt it been as he has used it twice now, both times removing an elected official that REGARDLESS of what they did or did not do, should not be constitutional.

CLEARLY the gop will abuse this in ALL red states ASAP.

[ITAL]

10. Well, the Constitution

Really regulates what states can do in elections for Federal offices, like the Presidency, Congress, etc.. By my reading of the document it really has nothing to say about how states choose, or get rid of, their elected officials (Governor, Assembly, etc), so I have doubts it would be ruled unconstitutional.

[Effete Snob]

15. You are correct

The US Constitution says nothing about the mechanics of state governments, provided that they are representative democracies of some kind:

https://en.wikipedia.org/wiki/Guarantee_Clause

[Effete Snob]

14. Why do you keep saying it isn't Constitutional?

What part of the Constitution are you applying here?

[Effete Snob]

11. Why is it unconstitutional?

As far as how states are run, the US Constitution's main provision is Article IV, Section 4, Clause 1:

"The United States shall guarantee to every State in this Union a Republican Form of Government"

What provision of the US Constitution do you think is being violated?

So:

1. I haven't checked your assumption about these belng "laws" or state constitutional provisions. Either way, sure, if there is a violation of the US Constitution, then these things can be challenged in federal court. State laws on a variety of topics are challenged in federal courts all of the time.

2. Yes, anything that is challenged in federal court as a constitutional violation would, if appealed and accepted by the Supreme Court, reach them if they decided to take it.

3. I'm not sure how to approach "if allowed, what stops them". If "allowed" by whom? If "allowed" by the people who would presumably otherwise have the power to stop them? It's not clear what this question is about.

The US Constitution doesn't have a lot to say on the topic of how state governments can or should be organized and run, other than the "guarantee clause" that the citizens thereof are entitled to a republican form of government.

Most of the interesting "guarantee clause" cases revolve around the efforts of the US federal government to guarantee republican forms of government in certain states leading up to, and after, 1863.

The role of the Constitution concerning the question of how state governments are organized and run is discussed here:

https://en.wikipedia.org/wiki/Guarantee_Clause


One *could* attempt to make out an equal protection claim on the basis that one is being deprived of the effect of one's vote by having elected officials removed from office. On the other hand, there are a lot of state government mechanisms for removing elected officials.

For example, in Delaware recently, the State Auditor (an elected official) was indicted for a variety of misdemeanors, and it wasn't clear whether there was any mechanism for actually getting rid of her. She stayed in office until she was convicted and resigned. https://en.wikipedia.org/wiki/Kathy_McGuiness

But there are lots of laws that provide for removing elected officials from office, and states are all over the map on those. Some are automatically removed under certain circumstances, some have to be impeached, some can be recalled, etc.. If it is "Constitutional" for a legislature to remove an elected official, why is it not "Constitutional" for a governor, or some public ethics commission, or some other person or body empowered to do so?

I'm old enough to remember when DUers wanted the Governor of Kentucky to remove Kim Davis, an elected county clerk who was refusing to issue marriage licenses to same sex couples in that state.

Pennsylvania, for example, says:

https://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&ttl=00&div=0&chpt=6

§ 7. Removal of civil officers.

All civil officers shall hold their offices on the condition that they behave themselves well while in office, and shall be removed on conviction of misbehavior in office or of any infamous crime. Appointed civil officers, other than judges of the courts of record, may be removed at the pleasure of the power by which they shall have been appointed. All civil officers elected by the people, except the Governor, the Lieutenant Governor, members of the General Assembly and judges of the courts of record, shall be removed by the Governor for reasonable cause, after due notice and full hearing, on the address of two-thirds of the Senate.


(May 17, 1966, 1965 P.L.1928, J.R.10)

I'm not even sure what that "address of two-thirds of the Senate" means. But, even if it is a vote of two thirds of the Senate, then is it Constitutional, in your opinion, to also require the governor to remove the elected official after that? What if 2/3 of the Senate wants the elected official gone, and the governor says, "No, I'm keeping him/her".

Would it be Constitutional if it was just the Senate? Why would that make it "Constitutional" but having the Governor instead of the Senate make that decision be unconstitutional?

[former9thward]

19. Why are you focusing on TX and GA?

New York and many other states have the same law. Don't you remember last fall when posters were demanding the NY Governor remove NYC DA Bragg because he was not moving on Trump fast enough? I do. No one complained about the constitutionality then.

[Effete Snob]

20. Remember Kim Davis in Kentucky?

Elected clerk of the court who was refusing to issue marriage licenses to same sex couples?

Lots of calls for the Democratic then-gov Beshear to "fire" her.

Sometimes principles matter if they accomplish the result we want.