Tucson City Council Election Update: Turn Out The Lights, The Party’s Over (Updated)

Posted by AzBlueMeanie:

As Dallas Cowboy great Dandy Don Meredith would sing whenever the winner of the game was a foregone conclusion on Monday Night Football, "Turn out the lights, the party's over."

The game is over for "Not the Democrat" Marshall Home™ who withdrew as a candidate last week before the court could boot him off the ballot for being ineligible to run for office.

The game is over for Republican Ron Asta, who was booted off the ballot last week for not having enough valid signatures. Asta asked to stay on the ballot even though he acknowledged he didn't have enough valid signatures. "He seems to think the rules don't apply to him," said Nicolle Anne Callahan who challenged his petitions.

The game is over for Democrat-turned-independent Pat Darcy who was booted off the ballot on Monday for not having enough valid signatures. Independent Mayoral candidate Pat Darcy not qualified to run – Carolyn's Community. He also pleaded with the court to stay on the ballot even though he acknowledged he didn't have enough valid signatures. Darcy also seemed to think the rules didn't apply to him.

On Monday, Republican Shaun McClusky sent out a letter saying that he was withdrawing as a candidate. Was it something I said? The delusional world of Shaun McClusky. Like boxer Roberto Durán, McClusky's corner threw in the towel to stop the fight saying "No más! No más! " – or did they?

Apparently Team McClusky also thinks the rules don't apply to him. Tedski at R-Cubed explains the "McClusky gambit" in McClusky Out…or Is He?:

So it’s over, right?

Not quite. The hearing is still scheduled for tomorrow [Tuesday]. His attorneys suggested that they may make some sort of move to have McClusky’s filing withdrawn.

Here is McClusky’s trouble. This is from ARS 16-312:

E. Except as provided in section 16-343, subsection E, a candidate may not file pursuant to this section if any of the following applies:

1. For a candidate in the general election, the candidate ran in the immediately preceding primary election and failed to be nominated to the office sought in the current election.

2. For a candidate in the general election, the candidate filed a nomination petition for the immediately preceding primary election for the office sought and failed to provide a sufficient number of valid petition signatures as prescribed by section 16-322.

3. For a candidate in the primary election, the candidate filed a nomination petition for the current primary election for the office sought and failed to provide a sufficient number of valid petition signatures as prescribed by section 16-322.

4. For a candidate in the general election, the candidate filed a nomination petition for nomination other than by primary for the office sought and failed to provide a sufficient number of valid petition signatures as prescribed by section 16-341.

This gets to why the move to pretend that he never filed in the first place. If he filed petitions, even bad ones, he’s ineligible to run as a write-in. It’s shaky, at best. Section 16-343 seems to allow for candidates who withdraw before a petition deadline to run as write-ins, but that deadline passed almost three weeks ago.

Not bad legal analysis for a non-lawyer, Ted. You are correct, sir! McClusky filed his petitions, the County Recorder reviewed his petitions, and found that he did not have enough valid signatures – in response to a petition challenge filed in court. The plaintiffs have not dismissed their petition challenge – McClusky cannot make this claim go away by arguing the fiction that he did not file his petitions because he now wants to withdraw after the fact, only to file to run as a write-in candidate in the primary. (This is the GOP "shenanigans" I warned you about in an earlier post).

The "McClusky gambit" will fail because the rank dishonesty of this move is transparently obvious to the court. Equity precludes the court from permitting McClusky to perpetrate this fraud. The court has a legal obligation to rule on the plaintiffs' claim and find that McClusky did not submit enough valid signatures to qualify for the ballot. This will preclude McClusky from running as a write-in candidate at the primary under A.R.S. Sec. 16-312. This game is over. Time to sing "Turn out the lights, the party's over."

You can catch the game today at 1:30 p.m. [UPDATE: Hearing moved to 3:30 p.m.], the petition challenge to Republican Shaun McClusky will be heard by Judge Richard Gordon in Courtroom 486. Brittni Storrs, e al. v. Shaum McClusky, et al., Case No. C20114398.

Pima County Superior Court Building, 110 West Congress Street, Tucson, AZ.

After this fiasco, I am guessing that Pima County Republican Party chair Brian Miller's days are numbered as well. "Turn out the lights…" 

As I said before in City of Tucson Mayor & Council Candidate Filings: Let The Games Begin!, this has been the craziest city election season I have seen since the water rates recall election back in the mid-1970s.

UPDATE: The plaintiffs challenging the petitions of Shaun McClusky have filed a motion challenging the "McClusky gambit" to withdraw as a candidate at this late date on two grounds:

First, Arizona's Public Records Laws.  "Once Mr. McClusky filed his petitions with the City Clerk he no longer had any ownership or control over those petitions. The petitions are now public records. They cannot be destroyed by the City except pursuant to state procedures related to Arizona's Public Records A.R.S. Secs. 39-121 et seq." "A.R.S. Sec. 38-421 makes it a class four felony  if the Tucson City Clerk would 'return' the filed petitions to Mr. McClusky."

Second, the issues have been joined.  "The plaintiffs have filed a complaint and the defendants have each filed answers. The defendant McClusky cannot 'moot' the plaintiffs' complaint and requested remedy by claiming he is going to ask someone else to either 'forget' he filed his petitions or to 'give them back.'" "This 'I want my petitions back' gambit is not a defense nor was it asserted as a defense" in defendant's answer, as required by Rule 12(b)(6).

UPDATE II: Tedski at R-Cubed reports on today's court hearing. It’s Official: McClusky Out: "The courtroom was calm as John Munger offered a rather tame and ultimately unsuccessful defense of Shaun McClusky’s candidacy. It is hard to see how McClusky would be allowed to run a write-in effort at this point (the judge indicated he doesn’t think McClusky can legally mount such a run)."

The Tucson Weekly reports on the GOP shenanigans I predicted would happen next. Pima County GOP Now Seeks Write-In Candidate for Mayor | The Range: "Sam Stone, spokesman for the Pima County GOP, tells us that a few people are considering launching write-in campaigns, although he declined to share any names. Any candidate would need to get at least 1,060 votes in the August primary to have his/her name on the November ballot."