Legal experts agree: no third term for the Red Queen


Posted by AzBlueMeanie:

Red.queenThe Red Queen, Governor Jan Brewer, once again has decided that the Arizona Constitution simply does not apply to her, because her court jester tells her so.

In fact, the Arizona Republic gave the Red Queen's court jester, Joe Kanefield, a "My Turn" guest opinion on Friday to make his convoluted case for why the Red Queen is allowed to run for another term. Kanefield:
Constitution clears Brewer to pursue another term

Without any factual or legal basis for his claim, Kanefield claims that the constitutional term limitations provision enacted by Arizona voters was never intendend to apply to a Secretary of State who has succeeded to the office of governor upon the death or resignation of the governor, an all too frequent occurrence in Arizona.

Fortunately, legal experts who actually know what they are talking about disagree and refute this convoluted theory without any factual or legal support. The Arizona Capitol Times (subscription required) reports Experts say Brewer can’t seek third term:

The Constitution limits executive
officers, including the governor, to two consecutive four-year terms,
including “any part of a term served.” The governor, who was elected to
full term in 2010, said she may challenge that provision in court.

But election and constitutional experts say there’s likely no chance
she would prevail. And privately, many denizens of the Capitol say they
don’t expect Brewer to actually try to run again, with some viewing the
idea as a way to avoid being viewed as a lame-duck governor.

Assistant Secretary of State Jim Drake, who served as House rules
attorney before joining the Secretary of State’s Office, commented in an
email on the term-limits provision in the Arizona Constitution: “In my
previous role, I read every single piece of legislation for 10 years and
rendered opinions on constitutionality. I can’t find even a scintilla
of ambiguity in Article V, §1.”

Attorney Paul Eckstein, who frequently
represents the Arizona Democratic Party in election cases, said there’s
no chance Brewer is eligible for a third term.

“It’s absolutely ludicrous that she would entertain it and that
anybody would seriously argue,” said Eckstein, of the firm Perkins Coie.
“This maybe could be achieved on Mars. And I’m not familiar with the
Martian legal system. I like to keep an open mind on these things.

I appreciate creative lawyering. But in my mind, it’s beyond the pale.”

* * *

Lee Miller, an elections attorney who
serves as counsel for the Arizona Republican Party, said the courts
would look at how ‘term’ is defined elsewhere in the Constitution and in
statute, and determine if there is a consensus definition. In that
context, he said, Brewer served part of a term when she took over for

“Go look at the vacancy-in-office statute, where when a vacancy
exists and a successor takes over. How long does that successor serve
before they’re required to stand for their own election?” Miller said.
“You can always find lawyers who are willing to engage in debate. But I
think in front of a judge it would be a mighty challenging question to
persuade a judge that Governor Brewer could legally serve beyond January

Paul Bender, an Arizona State University professor and an expert on
the Arizona Constitution, said the drafters of the 1992 initiative could
have adopted the federal model, which allows successors to the
presidency to run for re-election a second time if they serve less than
half of their predecessor’s term. But the fact that they didn’t is
telling, Bender said.

“It seems to me, one of the clear constitutional questions one could
find is that she really can’t run again,” Bender said. “It doesn’t seem
to me it’s plausible that she can run.”

Elections attorney Tom Ryan said the language of the term-limits provision is crystal clear.

“It may seem unfair. It may seem harsh. But it is what the people of
Arizona passed, and when we passed it, it included partial terms,” Ryan
said. “The plain language is very clear. It’s very simple to

* * *

Ryan said Kanefield’s gamesmanship
argument was a stretch, and questioned whether such an incident has ever
occurred in the United States.

“Nobody ever did that before. But the one thing that the state of
Arizona had seen was the succession issue. And they’ve seen that over
and over again,” Ryan said.

Lame-Duck1Election law attorney Kory Langhofer said Kanefield has at least an argument to make. . . But while Langhofer said it would be possible to succeed with that argument, he said it would be highly unlikely.

“My best guess is that the argument would not be accepted,” Langhofer said.

Jaime Molera, an aide to former Gov. Jane
Hull, who served a partial term when he succeeded former Gov. Fife
Symington in 1997, said there was some talk of Hull exploring the
possibility of seeking another term. But Molera said Hull never
seriously considered the idea, and he doesn’t think she believed she
would be able to run again.

“I personally don’t think it’s viable under the Constitution,” Molera said.

So let's cut the crap from the Red Queen's court jester, Joe Kanefield, and her publicist, Howard Fischer at Capitol Media Services, who are promoting this delusional notion. The Red Queen is a lame duck and will leave office in January 2015.