‘King’ Russell Pearce not so confident – legal challenge filed to recall election

Posted by AzBlueMeanie:

The summary report in the Arizona Republic today is factually incorrect. Russell Pearce files challenge to Arizona recall. Howard Fischer gets it right. Suit asks judge to throw out all signatures on Pearce recall petitions – East Valley Tribune:

Supporters of Senate President Russell Pearce asked a state judge on Monday to throw out all the signatures on recall petitions against him.

In legal papers filed in Maricopa County Superior Court, attorney Lisa Hauser said the Arizona Constitution requires that those who circulate recall petitions must sign an oath on the back that the signatures are "genuine.'' But the statements signed by circulators instead avowed only that they were signed in the presence.

Hauser acknowledged that those who want an election to oust the Mesa Republican were following the procedures used for other petitions. And she said recall organizers may even claim they were just following the petition forms from the state.

"But the law is clear that the (recall) committee has not right to rely even on the Secretary of State and remains responsible for compliance with the constitutional and statutory requirements for recall,'' Hauser told Capitol Media Services.

Ms. Hauser is also aware that in election law, case law has established the "substantial compliance with the law" standard, which is clearly met in this case by her own admission. The courts are loathe to disregard the will of the voters for a mere technicality such as the word "genuine" not appearing in the affidavit portion of the petition — provided by the Arizona Secretary of State's Office – when the purpose of the affidavit is to attest that the signature gatherer witnessed the signature of the individual signing the petition.

Hauser will be fighting more than recall organizers in courts. Secretary of State Ken Bennett said he believes that the petition forms provided to recall organizers do, in fact, comply with what the law requires.

Bennett said it is true that the affidavits circulators signed — then ones provided by his office — do not have the word "genuine.'' But he said they do swear that the signatures were made in the presence of the circulator, on the date indicated, that the address is correct, and that the person is a qualified elector of the state.

"Their challenge will be to get a judge to say that all of those characteristics (of the signatures) don't meet the requirements of them being 'genuine,' '' Bennett said.

I would point out that this recall election has been certified by Secretary of State Ken Bennett, and by Governor Jan Brewer, his immediate predecessor as Secretary of State. The court will give deference to the decisions of their offices.

[Hauser] also contends that the way recall organizers crafted the statement on the petitions about why Pearce should be ousted actually could have confused voters.

Hauser also said those who sign the petitions calling for the recall are required to print their own addresses. She said any petition where the circulator wrote in the address is invalid.

OK, this is pure bullshit. The only thing that county recorders and the secretary of state must verify is the 'genuineness" of the signature. It is common practice for anyone collecting petition signatures to fill out other information such as address and date. Under Hauser's absolutist approach, almost no petitions would ever be qualified because few people fill out the entire line on the petition.

And Hauser argued that if just one signature on a petition sheet is forged, that should invalidate all the other signatures on that same sheet, even if they are valid. That relates to the requirement for circulators to swear they witnessed the signatures.

"If a circulator is watching people sign — and he swears that he is doing that — and he watches the same person sign more than one line, then his affidavit is worthless,'' Hauser said, meaning none of the signatures on that sheet should count.

This is correct. However, the Maricopa County Recorder and the Arizona Secretary of State in reviewing the petitions have already checked for this when they verified the signatures.

Hauser said that, technically speaking, she is not representing the senator. In fact, Pearce he has told Capitol Media Services he is looking forward to a fight and being vindicated by the voters.

But Hauser said the lawsuit comes with Pearce's approval because he "thinks it is important to make sure the process is followed.''

The legal challenge must be brought by a "qualified elector." According to the complaint http://www.azcentral.com/ic/pdf/russell-pearce-recall-complaint.pdf, the plaintiff is Franklin Bruce Ross, a 'qualifed elector" of District 18.

The case is presently assigned to Judge Eileen Willett at the downtown court. No answers are yet filed, so no hearing has been scheduled on the docket.

I would remind readers that in 2010 a legal challenge was brought against Sen. John Huppenthal for using an exploratory committee to collect petition signatures prior to the last year of his term in office in clear violation of Arizona's resign-to-run law, and the Court eviscerated the resign-to-run law rather than disqualify Huppenthal from the ballot as a candidate for Superintendent of Public Instruction.

If the court would not enforce a clear violation of the law in Huppenthal's case, there is little reason to believe the court will resort to a mere technicality such as the word "genuine" not appearing in the affidavit portion of the petition to invalidate this recall election where there was "substantial compliance with the law" and it has been certified by both the Secretary of State and the Governor.