Feathered Bastard

Russell Pearce-Inspired Recall Bill Unconstitutional, Say Experts

A proposed legislative remedy to the successful recall of ex-state Senate President Russell Pearce is unconstitutional, according to experts in election and constitutional law.

Senate Bill 1449, sponsored by state Senator Steve Smith, recently moved through the Senate judiciary committee with a do-pass recommendation. If enacted, it would create both a recall primary and a recall general election, with the recall general election being dispensed with if there is no challenger emerging victorious from another party's primary.

It's a Republican attempt to prevent a repeat of Pearce's November recall from Legislative District 18, where a special election was held, one wherein all voters regardless of party affiliation cast ballots.

Problem is, SB 1449 is a change to state statute, not the Arizona Constitution, which clearly states in Article 8, Section 3 that if enough valid signatures are gathered from qualified electors in the district in question, then "a special election shall be ordered to be held."

That is, if the office holder doesn't choose to resign. Section 4 prescribes that the office holder's name will appear on the ballot and that other candidates can be nominated for the ballot at "said election."

Section 4 also reads that, "The candidate who receives the highest number of votes shall be declared elected for the remainder of the term." It says nothing about separate primary and general elections.

Senate judiciary committee chair Ron Gould told me the bill will now go to the rules committee, which will determine the constitutionality of the measure and if it can proceed to a floor vote. 

During committee, Smith spoke on behalf of the measure, asserting that the bill "does not conflict with the constitution."

But Arizona State University Professor of Law Paul Bender, whose expertise is the Arizona Constitution, says the proposed law would be unconstitutional.

"If this change is going to be made, it has to be made through a constitutional amendment," he explained. "The legislature can't do it itself."

Meaning the amendment would have to be placed on a statewide ballot. A state House attempt at this failed in that chamber's judiciary committee this week.

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Stephen is a former staff writer and columnist at Phoenix New Times.
Contact: Stephen Lemons