Russell Pearce-Inspired Recall Bill Unconstitutional, Say Experts

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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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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