The death of Cochise County Sheriff Larry Dever presents a rare election issue

Posted by AzBlueMeanie:

By now you are all aware that Cochise County Sheriff Larry Dever was killed in a single vehicle accident while on a hunting trip in Coconino County near Williams. Dever's mother passed away on Friday. Her funeral is scheduled for this weekend. Cochise County Sheriff Dever dies in car crash.

First of all, my condolences to Mrs. Dever and the Dever family, and to the Cochise County Sheriff's deputies and support staff for your loss.

The death of Cochise County Sheriff Larry Dever presents a rare election issue. Dever was running unopposed for reelection, now there are no candidates for County Sheriff. What happens now?

First, the Cochise County Board of Supervisors will appoint someone who is also a Republican to fill the remainder of Sheriff Dever's current term. A.R.S. §16-230(A)(2), in relevant part:

2. If a county office becomes vacant, the board of supervisors shall appoint a person of the same political party as the person vacating the office to fill the portion of the term until the next regular general election.

Because Sheriff Dever's death occurred between the primary election and the general election, A.R.S. §16-343 applies. Typically the vacancy would be filled by the party county committee nominating a candidate of the party's choice and filing a nomination paper and affidavit complying with the requirements of section 16-311 to fill such vacancy. A.R.S. §16-343(A)(3).

The problem, however, is that the ballots have already gone to the printer this week, according to sources with whom I spoke this morning. A.R.S. §16-343(B) provides that the party county committee nomination paper and affidavit are "to be filed at any time before the official ballots are printed." It's too late.

The answer defaults to A.R.S. §16-343(D), which provides:

D. A vacancy that is due to voluntary or involuntary withdrawal of the candidate and that occurs following the printing of official ballots shall not be filled in accordance with this section, however, prospective candidates shall comply with section 16-312. A candidate running as a write-in candidate under this subsection shall file the nomination paper no later than 5:00 p.m. on the fifth day before the election.

And A.R.S. §16-343(F), in relevant part:

A vacancy that occurs as prescribed in subsection D of this section due to the death or incapacity of the candidate shall not be filled and the secretary of state shall notify the appropriate county board of supervisors to post a notice of the death or incapacity of the candidate in each polling place along with notice that any votes cast for that candidate will be tabulated.

A.R.S. §16-312(B)(1) provides "A candidate running as a write-in candidate as provided in section 16-343, subsection D shall file the nomination paper not later than 5:00 p.m. on the fifth day before the election." Subsection C provides "The write-in filing procedure shall be in the same manner as prescribed in section 16-311. . ."

So the answer is that Sheriff Larry Dever will appear on the ballot and any votes cast for him will be tabulated. Write-in candidates may file to run and will have to comply with all the requirements of a write-in candidate. They will have to file "not later than 5:00 p.m. on the fifth day before the election." The obvious problem with this is early voting in Arizona begins on October 11, well before election day, and any write-in candidates will not be eligible during early voting until they have actually filed. They will also have the difficulty of running a write-in campaign on extremely short notice.

It is probable that the deceased Sheriff Larry Dever will win election in November, a rare event. (I anticipate that Dever will be a proxy vote for whomever the Cochise County Board of Supervisors appoints to fill the remainder of his current term of office). Which brings us back to A.R.S. §16-230(A)(2), in relevant part:

If the vacancy occurs within the first two years of the term, and before the date on which a nomination paper is required to be filed as prescribed by section 16-311, a primary election shall be held as otherwise provided by law to determine candidates to fill the unexpired term. At the next regular general election, the person elected shall fill the remainder of the unexpired term of the vacant office.

The most likely scenario, given this late date: The deceased Sheriff Larry Dever will win election in November. The Cochise County Board of Supervisors will likely appoint the same individual they will appoint shortly to fill the current unexpired term of Sheriff Dever. This person must be a Republican. There will then be a special election for County Sheriff in 2014 for the two remaining years of the four year term.

(Corrected for spelling error)