Arizona Eagletarian

Arizona Eagletarian

Saturday, June 23, 2012

Arizona UPRISING -- should Ken Bennett resign to run?

Arizona Secretary of State Ken Bennett has seemed determined, over the last month or so, to jettison his wholesome, non-controversial image as a fair-minded conservative politician in a state known nationally for controversial, even somewhat crazy policies. After the waters calmed from his thrashing about in May, he has stepped in another mess, this time again stoking the partisan anxieties of tea party types with speculation about President Obama.

Arizona House Minority Leader Chad Campbell has called on Bennett to resign either his position with the Romney campaign OR as Secretary of State.

The current overlap of Bennett's responsibilities hearkens back to the 2000 Presidential campaign when Florida Secretary of State Katherine Harris figured prominently in the George W Bush's campaign.  That year, Florida ended up being the fulcrum on which the US Supreme Court's decision to award the Presidency to Bush tilted. Not coincidentally, Harris won a seat in Congress in 2002.

If ever there was an opportunity to learn the lesson of history BEFORE it repeats, this seems to be just that.

So, I will echo Campbell's call for Bennett to resign one or the other position.

And if Bennett will NOT heed the voice of the people, we must raise our voice on this issue.


Former Arizona Senate President Bennett has already signaled his intent to run for governor in 2014. Amy Chan, state elections director, who reports to Bennett in her official capacity, acknowledged to the Arizona Eagletarian that Bennett has indeed begun collecting nominating petition signatures in that quest.

A couple of individuals recently called my attention to this issue because of Arizona's "Resign-to-Run" law. That law states:
Except during the final year of the term being served, no incumbent of a salaried elective office, whether holding by election or appointment, may offer himself for nomination or election to any salaried local, state or federal office. 
According to Ballotpedia, five states currently have resign-to-run laws on the books, Arizona being one of the five.

In 2009, several incumbent Arizona elected officials had signaled intent to run for other offices in 2010. Arizona Democratic Party executive director Luis Heredia filed a complaint against John Huppenthal, then a state senator, because he had begun collecting nominating petition signatures before reaching the one year mark prior to when he was then just "exploring" a run for Superintendent of Public Instruction.

Because a similar allegation had been leveled at Attorney General Terry Goddard (who ran for governor in 2010), he declared a conflict of interest and referred the complaint to Pima County Attorney Barbara LaWall. LaWall issued a 9-page opinion declaring none of the candidates in question had violated Arizona law. 

The Arizona Republic, in 2009, quoted former assistant Atty Gen Lisa Hauser on the issue, "Hauser said the law has enough ambiguities to make prosecution difficult."

LaWall's opinion also recommended the legislature modify the law, which it apparently did or tried to do during the 2011 regular legislative session. HB2304 (Elections Omnibus) was passed and signed into law. On page 29 of the bill, the following language was added to A.R.S. 16-903 (Candidates' campaign committees; exploratory committees):
After designating an exploratory committee, a candidate may lawfully collect signatures on nominating petition and receive contributions.
Based on my discussion with Chan, it appears that Bennett's office considers those ambiguities to have been resolved in favor of him lawfully -- now still about two and a half years prior to when he plans to be on the 2014 general election ballot for governor -- collecting signatures on nominating petitions. But I'm still puzzled by the fact that saying a CANDIDATE may lawfully collect signatures resolves constitutional language saying a person is not allowed TO BE A CANDIDATE.


Nevertheless, the conflict  -- between his advocacy for Mitt Romney to win this year and prevent President Obama from winning re-election and Bennett's position responsible for ensuring the integrity of Arizona's elections -- is dramatically obvious. I'm not sure there is a direct legal course of action to force Bennett to choose between those two positions.

However, there may still be outstanding ambiguity regarding the resign-to-run law that a resourceful and diligent team of lawyers could use to put pressure on Bennett anyway. 

Also from the Arizona Republic's coverage in 2009:

[Amelia] Cramer, [chief deputy] of the Pima County Attorney's Office, noted that prosecutors have to examine both the state Constitution and state law when weighing cases.
The Constitution says no elected official can seek a new political post until in the last year of his or her current office; voters in 1980 passed a resign-to-run law to give that provision some further definition.
The law states that an individual has made his or her candidacy official once he or she files nomination papers or makes a "formal public declaration of candidacy."
It might have worked: Most officeholders wait until the last year of their term to announce their next political ambition. They form exploratory committees, which the law allows, and dance around questions of their next political goal.
Still, debate swirls around what constitutes a "formal public declaration."
I'm not sure 2011's HB2304 clarified what constitutes a formal public declaration. 

To recap Arizona's Resign-to-Run law, the state constitution says (Article 22, Section 18):
Except during the final year of the term being served, no incumbent of a salaried elective office, whether holding by election or appointment, may offer himself for nomination or election to any salaried local, State or federal office. 
And Arizona Revised Statutes § 38-296 says:

A. Except during the final year of the term being served, no incumbent of a salaried elective office, whether holding by election or appointment, may offer himself for nomination or election to any salaried local, state or federal office.
B. An incumbent of a salaried elected office shall be deemed to have offered himself for nomination or election to a salaried local, state or federal office upon the filing of a nomination paper pursuant to section 16-311, subsection A or formal public declaration of candidacy for such office whichever occurs first. (emphasis mine)
And while the legislature did take some action, apparently hoping to clarify this situation, it appears that (unless there was some other legislation passed that I haven't heard of or otherwise found) the issue of what constitutes a "formal public declaration of candidacy" is still unresolved in statute or case law.

If litigation is entered into to address this situation, I would expect a lawyer for Bennett to suggest the intent of the legislature was to allow him to collect signatures lawfully prior to the last year as Secretary of State. But I would also expect the attorney for a plaintiff challenging Bennett to cite the intent of voters when they amended the state constitution to preclude what Bennett's doing now.


The bottom line to all of this is that there now exists conflict of interest in that Arizona's chief election officer is also serving as an unabashed, outspoken advocate for Republican Presidential candidate Mitt Romney; that Bennett also has offered himself to the people of the state of Arizona as a candidate for governor for the 2014 election and that Arizona constitutional and statutory law prohibits Bennett from holding office while having offered himself for that 2014 election for governor.

Ken Bennett, widely known in Arizona to be a plainspoken but fair-minded conservative Republican has ventured out publicly over the last few months to talk about this year's presidential race. In so doing, he has garnered national attention, most of which was not in a favorable light.

But as "they say," all publicity is good publicity. Right?


A friend and reader mentioned concern that there has been little to no mention of the connection between Mitt Romney the MORMON Republican presidential candidate and Ken Bennett the MORMON Republican Arizona Secretary of State, in news coverage of Bennett's birther related misadventures. He's (my friend) correct.

There's no denying that there is a very strong presence in Arizona government by Mormon Republicans.  How can we not be concerned for the integrity of this year's presidential race in our state with Bennett having such a strong connection and influence over the process?

I don't have the answer. But we all should be thinking and asking about it. And getting Ken Bennett to make a decision about who he will serve this year.


  1. Steve,

    In my view, the collection of signatures is a "formal public declaration of candidacy for such office" anyway you slice it. I just can't see it any other way. Maybe it is time for the voters to enact a ban on our election officials, especially our Secretary of State from campaigning for anyone else and also to "clarify" the intent of the "resign to run" laws.