LD 29 voters disenfranchised by Secretary of State Ken Bennett (Updated)

Posted by AzBlueMeanie:

Oh geezus! Un-freakin'-believable!

I explained the proper way to understand A.R.S. §41-1202 in Rep. Daniel Patterson resigns after recommendation for expulsion (Updated), but our state's political media simply parrot Secretary of State Ken Bennett who ignores all other language in the statute to focus solely on four words "immediately before the vacancy."

For Secretary Bennett, disenfranchising the voters of Legislative District 29 and ignoring the will of the voters of the district who sent a Democrat to office is irrelevant. For him it's a shot clock violation like in basketball. Patterson's replacement will be an independent:

Secretary of State Ken Bennett said today that Daniel Patterson was an independent at 1:36 p.m. Wednesday — the official time he resigned from the House.

Bennett acknowledged that Patterson, who had been a Democrat until reregistering earlier this month, did go online and switch back to his party on Wednesday. But Bennett said the records from the state Motor Vehicle Division, which operates the web site, peg that action at 2:01 p.m.

Bzzzzzzt! Shot clock violation.

Bullshit alert! Here is Secretary Bennett's explanation:

"The law is clear that in determining the method of filling the vacancy, the political party of the person who vacated the office is the deciding factor in determining whether party officials select the nominees or whether the Board of Supervisors selects a citizen panel to do so," Bennett wrote this morning to Ramon Valadez, who chairs the board. And in this case, Bennett said, the records reflect that Patterson was an independent when he quit.

Secretary Bennett ignores the first part of his own statement, "the political party of the person who vacated the office is the deciding factor," and ignores the express language of:

A.R.S. §41-1202(A): If a vacancy occurs in the legislature and the vacant seat was represented by a political party that is organized pursuant to title 16, chapter 5, article 2 …

A.R.S. §41-1202(B): If the vacant legislative seat was represented by a political party that is organized pursuant to title 16, chapter 5, article 2 …

And A.R.S. §41-1202(C):

For the purposes of this section, "appropriate political party" means the same political party of which the person who was elected to or appointed to the office was a member immediately before the vacancy occurred."

The last time I checked, there is no such animal as an "Independent Party" organized pursuant to title 16, chapter 5, article 2. "Independent" is not a recognized political party in Arizona.

The law is not as clear as Secretary Bennett asserts. As I previously explained:

[T]he statutory language of subsection (B) at first blush appears to be in conflict with subsection (A) and creates some ambiguity with the meaning of "immediately before the vacancy occurred was a registered independent," but there is no ambiguity in A.R.S. §41-1202(C) which provides, "For the purposes of this section, "appropriate political party" means the same political party of which the person who was elected to or appointed to the office was a member immediately before the vacancy occurred."

The language in subsection (B), "If the person elected to or appointed to the office immediately before the vacancy was a registered independent, the qualified electors shall be registered as independent," is properly understood to refer to an Independent elected or appointed to the office immediately before the vacancy.

The act of an elected individual changing his political party registration while serving in office is not contemplated by the statute and should not be given any force or effect. This would only invite political mischief of the sort that Daniel Patterson engaged in, and would produce an absurd result that thwarts the will of the voters, something the laws of equity do not condone. The will of the voters of LD 29 is entitled to deference. They elected a Democrat. If the elected individual can determine the outcome by an eleventh-hour change of party affiliation, then the statute should address this possibility, and it does not.

If this is the interpretation to be given the statute, it flies in the face of the laws of equity and the statute needs to be amended.

According to the Arizona Capitol Times (subscription required), "Bennett’s letter does, however, say that the Secretary of State’s office would welcome a judicial resolution to the matter," Secretary of State: Independent to replace Patterson | Arizona Capitol Times, indicating to me that he is not so confident "the law is clear."

At least for the moment it does not appear the Democratic Party is interested in challenging Secretary Bennett's incorrect interpretation (Capitol Times cont.):

Pima County Democratic Party Chairman Jeff Rogers, who said he was one of those who urged Patterson to re-register as a Democrat, said he doesn’t think a lawsuit challenging the Secretary of State’s determination will have much support. Since the legislative session is nearly over, and because the newly redrawn legislative district has an overwhelming Democratic favor, the wisest course of action could be to allow an independent to replace Patterson, then focus on getting a Democrat elected in the fall.

“Would it be worthwhile to spend money on a lawsuit for a seat that doesn’t really have any power, unless they come back for a special session sometime this year?” Rogers questioned. “I just don’t think it’s the best way to spend money.”

But Rogers also said that he’s spoken with the Pima County Recorder, F. Ann Rodriguez, and that her office has traditionally not considered the time of an online registration, only the date, meaning that she might disagree about what Patterson’s affiliation was when he left office.

“Maybe this isn’t the last word on the issue,” Rogers said.

Any decision to litigate or not should come from the Arizona Demcoratic Party. This case has precedential value.

UPDATE: As if intended to instruct the Secretary of State that his interpretation of the statute is incorrect, the Committee of the Whole (COW) of the Arizona Senate on Thursday approved the Comprehesive Election Law Amendments, HB 2379, that "clarifies" the matter for Secretary Bennett:

"Sec. 26.  Section 41-1202, Arizona Revised Statutes, is amended to read:

41-1202.  Vacancy in legislature; precinct committeemen; appointment; definition

* * *

C.  For the purposes of this section, "appropriate political party" means the same political party of which the person who was elected to or appointed to the office was a member immediately before the vacancy occurred except that if the person vacating the office changed political party affiliation after taking office, the person who is appointed to fill the
vacancy shall be of the same political party that the vacating officeholder was when the vacating officeholder was elected or appointed to that office."

Got that Secretary Bennett? It is "the same political party of which the person who was elected to or appointed to the office" that is controlling, NOT the four words you incorrectly choose to emphasize, "immediately before the vacancy occurred." Changing one's political affiliation is irrelevant. It is the election that is controlling.

Secretary Bennett, I urge you to reconsider your opinion in light of the clear purpose and intent of the state legislature. You can save everyone unnecessary expense of litigating this matter if you simply reconsider your incorrect opinion to conform to the correct legal interpretation above with which the Arizona legislature agrees in the above legislation.