The closest the Supreme Court has come to addressing recall elections for members of Congress was its 5–4 decision in U.S. Term Limits, Inc. v. Thornton. As the name suggests, the Court was speaking specifically to term limits in that case, but the majority opinion penned by Justice John Paul Stevens rejected the argument that states could add congressional qualifications that weren’t “specifically enumerated in [the Constitution’s] text” just because our foundational document was silent on the matter. That clearly doesn’t bode well for the notion that states can mandate additional elections for sitting members of Congress.
Originalists will note that Justice Clarence Thomas and three other conservatives on the Court dissented in that case. The general tone of Thomas’s argument, at first glance, would actually support the constitutionality of a state recall election. “Where the Constitution is silent, it raises no bar to action by the States or the people,” Thomas wrote. “The people of the States need not point to any affirmative grant of power in the Constitution in order to prescribe qualifications for their representatives in Congress.”
But Thomas went on to specifically cite recall elections as the sort of thing the Constitution wasn’t silent on.
