Russell Pearce-Inspired Recall Bill Unconstitutional, Say Experts

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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.

Bender said if SB 1449 became law, it likely would be subject to a legal challenge by someone who wants to run in a recall election, but doesn't want the hassle of a primary.

"But you know that would take time, cost money," he said. "So it would be much better if they didn't pass it."

Elections law attorney Tom Ryan, who successfully defended the LD 18 recall petition against a challenge from the Pearce camp and who challenged the legitimacy of sham recall candidate Olivia Cortes in court, also believes the bill would make for an unconstitutional statute.

"The constitution is very clear that it's a special election," he told me. "Period. That's it. [SB 1449] runs afoul by creating two elections."

Ryan was withering in his assessment of the motive behind the bill.

"This is intended to ameliorate the situation where [the Republicans] think that the Democrats and the liberals [took] down Russell Pearce," he said. "There aren't that many Democrats and liberals in LD 18. He was kicked out by his own party and the Mormons. That's really what it was. He refuses to accept that and so do the idiots that support this."

Pearce ended up losing by 12 points to fellow GOPer Jerry Lewis. Both men are members of the Church of Jesus Christ of Latter-day Saints. The district is heavily Mormon, and is considered a GOP stronghold.

A poll released days before the election showed that GOP voters were split down the middle. Mormons were also split with a slight edge for Lewis. Yet, many Republicans insist Pearce would have prevailed if only Republicans were allowed to vote.

"They're mad because the system worked, and their team lost," scoffed Ryan.

He later added via e-mail, "Apparently when Sen. Steve Smith took his oath of office and swore to uphold the Constitution of the State of Arizona, he crossed his fingers and muttered under his breath, `Unless it's to save Russell Pearce's sorry @ss [sic]!'"

A side note: Some railbirds have blamed Democratic state Senator David Lujan for the bill moving out of committee because he wasn't present to vote no on the measure. Instead, he was on Channel 8's Horizon discussing the GOP's union-busting bills with Republican state Senator Rick Murphy, who is also on the judiciary committee.

But Gould told me that if only Murphy had gone to do the Horizon show and Lujan had stayed, he would have held the bill until Murphy returned. Either way, the bill would have moved.

Lujan, when he was state House minority leader in 2010, missed the House's crucial vote on Pearce's Senate Bill 1070. He was recently appointed to fill state Senator Kyrsten Sinema's post, after Sinema resigned to run for U.S. Congress in CD 9.

Considering what Gould told me, I don't think Lujan bears any blame for the bill moving out of committee.

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