Russell Pearce-Inspired Recall Bill Unconstitutional, Say Experts

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Smith shilling for his unconstitutional bill before the judiciary committee

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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31 comments
Alfredo Moncayo
Alfredo Moncayo

One word...."MORMONKAHDAFFY"....aka "RUSSELL PEARCE"

wherewasi
wherewasi

They all laughed at the idea that Russell Pearce was being recalled.  They all thought it would never happen.  They all believed that even when the election was set, Russell would come out victorious.  

They all now know that if they aren't acting in the best interest of all the people in Arizona, they can and will be recalled.  So instead of vowing to act in our best interest, they want to change the rules so they can continue to be idiots without fear of reprisal.

You had better believe this one will end up in court if they pursue this.  What they are doing is not constitutional.

Cchamb2
Cchamb2

If I understand it correctly, recall elections are party neutral, which means that Pearce could have been replaced by a Democrat.

Oh, the horror of it!

Dennis Gilman
Dennis Gilman

What is really going on here is the internal fighting inside the republican party. The moderates simply don't have the courage to stand up for what is right. 

teknik1200
teknik1200

It doesn't take much to see that this bill is unconstitutional.

however, I've never seen republicans think much about the constitutionality of the laws they push for and pass.

Vic
Vic

Steve Smith of Maricopa is the one to keep an eye on, Pearce's heir in Az politics and in my
opinion not to be trusted.

Tina
Tina

Well, here are the 8 members of the Senate Judiciary Committee, 6 Republicans and 2 (Gallardo & Lujan) Democrats, that committee chairman Gould said passed SB 1449 -- the convoluted recall bill that violates the state constitution -- out of that committee on Feb. 13.  Four of the eight were co-sponsors of the bill. Any lawyers among the eight?

Gould, chairman & sponsor
Biggs, vice chairman & sponsor
Burgess, sponsor
Murphy, sponsor
Driggs
Yarbrough
Lujan
Gallardo

There were also 8 sponsors of SB 1449, naturally all Republcans. Any lawyers among them?

Smith
Klein
Allen
Shooter
Gould
Burgess
Biggs
Murphy

Were any other committee members absent besides Lujan & sponsor Murphy, who both were off doing a Channel 8 Horizon show?

The "Action" taken on SB 1449 by this senate judiciary committee on Feb.13 just states "(3-2-3-0) DP," presumably some kind of vote talley, but how Gould translates that into a "do-pass" recommendation out of his committee is a puzzlement.  

The contents of this bill call for TWO recall elections being scheduled, a primary and a general, for ANY recall of ANY elected official, even those who by law were elected to non-partisan governing bodies (school boards, city councils, etc.), and it removes the prohibition against the designation of a political party being printed on recall ballots after a recall candidate's name.

In my view political parties have no place in recall elections.  Mr. Smith, for example, once he was elected, represents ALL the people in his district.  If he turns tail on the majority of his constituents who elected him, they all have a voice in trying to remove him from office, regardless of his or their party affiliation.   

 

Reggie in VV
Reggie in VV

The one party dictatorship running this State acts like Assad and Khaddafi before him.  The care not one iota for the rule of law, unless it serves them solely, and the Constitution is only what the one party dictatorship says its--and nothing more.  Voters, see these clowns for what they are. Doris Goodale, have some courage once, ALEC and the Goldwater Institute should not be the power behind the one party dictatorship. 

Bud
Bud

Recall Steve Smith and make him the first test case of the constitutionality of the law.

Tina
Tina

There is nothing ambiguous about the wording in the Arizona Constitution concerning "a" recall election. 
Sen. Steven Smith's unconstitutional bill is an insult to the intelligencee of anyone who can read. His asinine  unconstitutional proposal doesn't even take into consideration non-partisan governing bodies, such as city and town councils and school boards throughout the state, whose elected members are also subject to recall.  How does he propose to ask Arizona voters to amend the recall provisions in the state constitution to accommodate those non-partisan elections? Are there ANY lawyers on the Senate Judiciary Committee? If so, who are they and how did they vote? (We know of the two committee members who were reportedly absent.)  In fact I'd like to know all the  members' names of this Senate Judiciary Committee and how they voted on this patently unconstitutional measure proposed by Mr. Smith.  I should also like to know the legal source of Mr. Smith's claim that his proposed bill "does not conflict with the constitution."It most certainly DOES conflict with the Arizona Constitution.   At least the House judiciary committee had the good sense to reject the same proposal over there.  Is there no legal counsel whose job i is to advise our state senators when clearly unconstitutional bills are submitted for their approval or rejection?There was great wisdom of our founding fathers in making the provisions for recall of elected officials very difficult to obtain.   The state constitution is not broken and does not need "fixing."       

Wanumba
Wanumba

Of course it is and they know it.  The sponsors should pay for the time wasted on stupid shit like this.

Carolyn Sue Barker
Carolyn Sue Barker

I think they do not like to face their misdeeds and would make any excuse to brush off the consequences of those misdeeds. They seem to be so obcessed with getting power  and following  rigid policies that have failed before,that they forget they are representing their district citizens. Get with it and cooperate and compromise that is how the government has been managed successfully in the past.

LD19 Resident
LD19 Resident

Typical of the clowns running this 3 ring circus.

The cowards are afraid of losing their grip over the State of Arizona. So, they will run afoul of both the Arizona Constitution, which allows the recall of basically any elected officeholder, and the U.S. Constitution, which allows for the impeachment of basically any elected officeholder, by creating an unconstitutional law to protect their sorry asses.  

If this law passes, it will, more than likely, be found null and void by the Arizona Supreme Court. 

Pearce was recalled, then booted, because he cared too much about immigration and ignored the issues afflicting both Arizona and the voters of LD18. Pearce was eventually told to piss off when Jerry Lewis was elected.   

shadeaux14
shadeaux14

 As long as the general population remains stupid enough to elect these miscreants, they will continue to be idiots and the reality is---there will be little, if any, reprisal.

PTCGAZ
PTCGAZ

 too bad he wasn't. WE need all republicans to be replaced by democrats and democrats replaced by republicans. That would fix things in a hurry.

shadeaux14
shadeaux14

 
actually, it is the citizens of Arizona who lack both the courage and the intelligence to stand up and do what's right. In election after election, they continually elect corrupt and incompetent leadership.
I guess the leadership is just a reflection of a corrupt and incompetent electorate.

PTCGAZ
PTCGAZ

 they sure were stupid with SB 1070.

Smith is Paulies Pal
Smith is Paulies Pal

Go easy on Sen. Smith.

He shepherded legislation last year to give sheriff's more control over their budgets, bypassing the boards of supervisor. Who would be the victors in that scheme? Sheriffs Paul Babeu and Joe Arpaio. Wise move, Smith.

Sen. Smith, take care of your county's problem child, Babeu, and leave the recall as it is.

DPSnAZ
DPSnAZ

 This is an attempt at voter disenfranchisement, plain and simple. Clearly unconstitutional.

PTCGAZ
PTCGAZ

 how about we recall all the republicans at once!

LD19 Resident
LD19 Resident

Tom Horne is the Senate's legal counsel (Horne is legal counsel for all government entities in Arizona). So, you can bet that he's in full support of this BS...

PTCGAZ
PTCGAZ

 it should come out of their salaries to reimburse the tax payers!

PTCGAZ
PTCGAZ

 yet somehow he is back in the GOP party. This whole thing will just waste more tax payer money that could be used for much better things than saving Pearce's ASS!

Tina
Tina

Did Steve Smith, the state senator from Maricopa, have any competition when he ran for the state senate? Or was he the sole candidate?  I remember that when Russell Pearce first ran for public office (for the state House) about 12 years ago, Pearce and the other Republican (we had to elect two house representatives) were the only names on the ballot in the Republican primary and the general. No Dem or Independent candidates. Same thing occurred in a few successive elections.  Just wondering if that's how Smith first got elected.

wherewasi
wherewasi

Unfortunately, I think you're right about that.

Tommy Collins
Tommy Collins

 It may be that when Babeu is no longer sheriff or congressman Sen. Smith can hire him as his personal "meat packer". Should be nothing short of a love fest.

PTCGAZ
PTCGAZ

 of course he is. HE is a slimy piece of shit republican FAIL lawyer. He wouldnt know the AZ Constitution from a constitution he pulled out of a cracker jack box, or his own ass.

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