Recall boomerang? How Georgia prosecutor could benefit from a Trump-backed recall effort

Facing significant legal trouble in Georgia for their efforts to overturn the vote in the 2020 presidential election, Donald Trump’s supporters have looked west for a new line of attack on Fulton County District Attorney Fani Willis, who is leading the investigation — an attempt to recall her from office. Due to Georgia law, there is only a very slim chance that such an effort would even get to the ballot. But if it does, Willis, rather than her opponents, may be the one who has reason to celebrate. 

The effort appears to borrow from the widely-followed and successful recall of San Francisco District Attorney Chesa Boudin, as well as the ongoing attempt against Los Angeles District Attorney George Gascon. Additionally,a Colorado District Attorney resigned after a recall got on the ballot. But none of those efforts had a particularly partisan bent to them. Instead, they were based on policy issues — namely the effectiveness of a new breed of progressive prosecutors who are accused of being soft on criminals. These recalls do not have much risk that the other party will take charge. Notably, Boudin’s replacement was selected by London Breed, the Mayor of San Francisco, who herself is a Democrat.  

A recall against Willis in George, which may use the same “soft-on-crime” excuse, is unlikely to get a similar response; instead, it will appear to be a clear partisan effort. 

That difference is not even the most important distinction. 

California and Colorado have what is called a “Political Recall” law; namely, recalls can be launched against officials for practically any reason. There is no need to provide a showing of misconduct or incompetence. Instead, the recalls can be based on policy, partisanship or even personal pique. The result is that almost all of the notable recalls that have taken place in the U.S. have occurred in political recall jurisdictions. 

Georgia is one of eight states that use what is called a “malfeasance or judicial recall” standard. These recall laws demand that any petition cite either a specific legal violation or a vague, but almost always extremely strictly defined lack of fitness or showing of incompetence. Each of these states has a great deal of variety in how the laws are written and how the recalls take place. But they all require either the courts or a governmental actor to rule that a statutorily delineated law was violated before a recall election can be held. 

As a result, Georgia has seen very few recall elections.  

Since 2008, there have only been two that I’ve tracked that have gone to the ballot: Blackshear Councilmember Shawn Godwin in 2020, who was ousted over complaints about opposition to the hiring of a city clerk (and a host of other complaints) and Meigs Mayor Linda Eason-Harris in 2016, who was kicked out after a theft of funds indictment. Additionally, Hoschton Mayor Theresa Kenerly and City Councilman Jim Cleveland resigned rather than face the voters over complaints about racially provocative comments and discriminatory hiring practices

It is possible that the courts could allow a recall to go forward. The Blackshear councilmember recall did not seem to fit into the traditional malfeasance standard limitation. And courts have been willing to change the law. In 2021, an Alaska Supreme Court decision allowing a gubernatorial recall effort to proceed may result in pushing that state to a political recall law. Georgia’s own law was originally limited by a 1988 decision, with two notable dissents, that pushed the state into a malfeasance requirement. 

But surmounting that challenge is not enough. Petitioners would still need to get close to 242,000 valid signatures to get on the ballot — a very challenging feat, especially in an extremely Democratic county. 

Even if they manage to clear those hurdles, the result could be quite poor for the recall supporters.  

Most recalls succeed in removing officials. Since 2011, we’ve seen that about 60 percent of recalls succeed — but with such a Democratic area and with such a clear partisan bent, Willis would probably not be facing much of a challenge. Instead, she could be the prime beneficiary of the “recall boomerang.” 

Numerous officials have seen their career get a boost from fighting a recall campaign. After defeating a recall in 2021, California Gov. Gavin Newsom appears to have a gilded path to reelection and is now being talked about as a future presidential contender; Wisconsin Gov. Scott Walker became a Republican star after beating back a 2012 recall vote; San Francisco Mayor Dianne Feinstein went from a recall victory in 1983 to the short list for vice president in 1984 and now the longest serving U.S. Senator in California history; State Senator Jeff Denham beat a recall in 2008 and then won a Congressional seat. Even a loss is not necessarily a career ender: North Dakota Gov. Lynn Frazier lost a recall in 1921 and then was elected to three U.S. Senate terms starting in 1922. 

A prominent recall campaign could boost Willis as a Democratic star, gain her a national following and — perhaps more importantly — create a huge list of potential donors that could be tapped for future runs for higher office. 

A recall effort against Willis may seem like a distraction or a threat for Trump forces looking to ward off a serious investigation into their post-election behavior. But for Willis, the recall should not be a cause for concern. It should instead be seen as an opportunity.

Joshua Spivak is the author of “Recall Elections: From Alexander Hamilton to Gavin Newsom.” He is a senior fellow at the Hugh L. Carey Institute for Government Reform at Wagner College and a senior research fellow at the Berkeley’s Law California Constitution Center. He also writes the Recall Elections Blog.

Tags Attempts to overturn the 2020 United States presidential election Chesa Boudin claims of 2020 election fraud Dianne Feinstein Donald Trump Fani Willis Gavin Newsom George Gascon Jim Cleveland London Breed Presidency of Donald Trump Recall election recalls Scott Walker Theresa Kenerly Trump criminal investigation Trump phone call Trump phone records

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