Redistricting -- First real test of new district competitiveness

At 5:00pm today, the deadline for Congressional and legislative candidates to file nominating petition signatures with the Arizona Secretary of State passed. The first test, therefore, of whether or to what degree the new districts are competitive comes in finding out which races are either already decided or will be decided when the votes in Arizona's August 2012 primary election are counted.

That test is whether any opposing candidates have stepped up in a given district. My initial analysis, simply a first glance, also does not take into account the candidates running on Libertarian, Green or the "Americans Elect"* party tickets.

There is only ONE Congressional district in which the major party candidate will face NO opponent from the other major party. In the Phoenix area Voting Rights district, Arizona's 7th Congressional District, incumbent Ed Pastor has only has a primary election opponent, Rebecca DeWitt.

Of the thirty seats in the Arizona Senate, it appears that thirteen of them are all but decided now or will be after the primary. Six of them will apparently be filled by Republicans and seven by Democrats. Those districts are:

• LD 1     Steve Pierce (R) (Prescott area)
• LD 2     Linda Lopez (D)  (Tucson)
• LD 3     Olivia Cajero Bedford / Maria Garcia (both Dems, Bedford is an incumbent) 
• LD 4     Lynne Pancrazi (D) (Yuma)
• LD 7     Jack Jackson Jr (D) (Window Rock)
• LD 12   Andy Biggs (R) (Gilbert)
• LD 13   John Nelson / Don Shooter (both Republican incumbents) in primary
• LD 15   Nancy Barto (R) (NE Phoenix)
• LD 19   Anna Tovar (D) (Tolleson)
• LD 22   Judy Burges (R) (Sun City West)
• LD 23   Michele Reagan (R) (Scottsdale)
• LD 29   Steve Gallardo (D) (Tolleson)
• LD 30   Robert Meza / Raquel Teran (both Dems, Meza is an incumbent) (West Phoenix)

This situation does not preclude the possibility that an opposing major party candidate may register as a write-in candidate and possibly qualify for the general election ballot by getting enough votes in the primary.

This also does not reflect the likelihood that some brave minority party candidate will have qualified for the primary ballot without there having a snowball's chance in Arizona in August. I have not done that level of analysis thus far.

The following races for the Arizona House of Representatives will also almost certainly be decided in the primary, if they aren't already decided:

• LD 1     Republican
• LD 3     Democratic
• LD 4     Democratic
• LD 7     Democratic
• LD 12   Republican
• LD 13   Republican
• LD 19   Democratic
• LD 22   Republican
• LD 23   Republican
• LD 29   Democratic
• LD 30   Democratic

Additionally, I did not list districts (for the House races) in which one of the major parties has only one candidate qualified. There are, of course, two House seats for each legislative district. 

Again, this does not preclude a political party further assessing a given district, finding a candidate, registering her or him and running a successful write-in campaign for the primary.

This analysis also does not either look at or consider whether any particular candidate is up to the job or otherwise qualified or not to represent the people of Arizona.

This is just a first glance at the upcoming primary and general election in Arizona.

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*The Americans Elect Party of Arizona website has for a motto: Let's make Arizona less of a shithole

Redistricting -- AZ Supremes deny bid for review

On May 7th, Maricopa County Attorney Bill Montgomery's office (acting on behalf of the State of Arizona) filed a Petition for Transfer to the state Supreme Court of its appeal of Judge Dean Fink's ruling in the Arizona Independent Redistricting Commission Open Meeting case.

You may recall that last fall, Judge Fink (in Maricopa County Superior Court) ruled that provision for Open Meetings in the Arizona Constitution, as amended by voters when the AIRC was established, supersedes the statutory Open Meeting Law.

Montgomery, immediately after Fink's ruling, announced his intent to appeal. In due course, the appeal and the AIRC response were filed in the Arizona Court of Appeals.

This petition for transfer cites:

The issue presented – the applicability of the Arizona Open Meeting Law to the Arizona Independent Redistricting Commission -- is an important issue of statewide impact. The previous matter involving the Arizona Independent Redistricting Commission matter was identified by this Court as a “high profile” matter. Moreover, the implementation of the Commission’s decisions is proceeding apace, and may affect the Fall 2012 elections. (emphasis mine).

snip

ARCAP [Arizona Rules of Civil Appellate Procedure]19(a) (3) provides that an appeal may be transferred to the Supreme Court where “[a]ny other extraordinary circumstances justifying transfer.” Those circumstances include the substantial statewide importance of interpretation of the Constitution and Arizona’s open meeting laws and the consequent need to decide this matter expeditiously. (again, emphasis mine)

It appears that Mr. Montgomery, when this petition was filed (May 7) either was coordinating an effort -- with Liburdi/Cantelme/Hauser regarding the maps which had been approved by the AIRC and precleared by the US Department of Justice -- to get those maps disqualified for use for this year's elections OR was throwing a desperate Hail Mary pass hoping to throw a wrench into the works even if not coordinating the effort with the attorneys representing the tea partisans.

Given that we now know that Maricopa County Elections officials intended to intervene in the tea partisans' lawsuits, to stop any effort to block the maps for this year, one simply has to wonder just WHO Montgomery's office represents.


Today, the Arizona Supreme Court denied (see page 2 of the linked pdf, re: T-12-0002-CV) Montgomery's petition for transfer without any comment.

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Exhibits filed with the Petition to Transfer the case to Supreme Court are found at these links: Exhibit A, Exhibit B and Exhibit C.

Redistricting; Rosemont Copper

On Friday afternoon, attorneys for the Arizona Independent Redistricting Commission stipulated -- along with attorneys (David Cantelme and Mike Liburdi) for the plaintiffs (in the federal court case challenging the legislative district maps) -- to a schedule for filing briefs related to the AIRC Motion to Dismiss.

Plaintiffs and Defendants Arizona Independent Redistricting Commission and its members (collectively “IRC”) hereby stipulate to the following briefing schedule for the IRC’s motion to dismiss filed on May 23, 2012:
1. Plaintiffs’ response: June 25, 2012
2. IRC’s reply: July 13, 2012.

The parties respectfully request the Court to enter the accompanying order adopting the proposed briefing schedule.

Plaintiffs regard the motion to dismiss as one converted to a motion for summary judgment, the IRC continues to view the motion as one to dismiss under Rule 12(b)(6), and neither side waives its position by agreeing to this briefing schedule, which is entered into based on counsels’ overall workload obligations.

Both parties request oral argument. Should the Court be disposed to grant oral argument, counsel would like to bring to the Court’s attention that Mr. Kanefield is going on vacation during the period of August 5 to August 13, 2012, and Mr. Cantelme will be in trial in Superior Court in Phoenix the weeks of August 13 and August 20, 2012, and will be on vacation the weeks of October 8 and October 15, 2012.

I included the last paragraph for its entertainment value. To me, it seems somewhat absurd to be advising a federal court when you will be going on vacation.

So, if the court accepts the stipulated schedule (and it likely will), it will be close to another month before we are treated to Cantelme's profound argument (wink, wink) as to whether this bunch of Tea Party wackos have a legal leg to stand on.

The one nugget of insight from the stipulated briefing schedule is that Cantelme considers the Motion to Dismiss to have been a motion for summary judgment. Which might simply be splitting hairs.

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Also earlier in last week, the Arizona Corporation Commission delayed construction of the high voltage electric transmission lines from Tucson Electric Power's facilities to the proposed Rosemont Copper Mine project southeast of Tucson.

On Thursday, Rosemont Copper issued a press release spinning the ACC decision much differently.

Rosemont's release conveniently fails to mention that it had vigorously pursued and hoped to obtain authority to proceed with construction of the transmission line PRIOR to obtaining the necessary permits to begin the mine operation.

Of course, Rosemont is trying to sell the project to Tucson area residents as an economic engine. But it fails (again and again) to disclose a number of material facts and issues about the company (for example, that it fraudulently claimed to Arizona regulators that principals involved with the company had never been bankrupt) and about the environmental impact (such as to the air Tucsonans breathe and the water supply they rely on).

It is understandable that Rosemont wants people to believe it achieved a victory at the ACC last week when it really suffered what would more fairly be considered a huge setback.

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Finally, please remember and honor America's members of the Armed Services, those who have died for the cause of freedom and those still living. As much as we love to criticize our government, ultimately many have boldly fought for our right to do just that.

Redistricting -- another Motion to Dismiss; other Voting Rights Act concerns; Rosemont Copper Power Line decision

This afternoon, Arizona Independent Redistricting Commission attorneys filed response to the Republican lawsuit that seeks to invalidate the new legislative district map (in federal court), in the form of another Motion to Dismiss. On Monday, AIRC counsel filed response in Maricopa County Superior Court to the other lawsuit (which seeks to strike down the new Congressional district map).

As I noted on April 29, the entire objective of this suit (in federal court) is summed up in paragraph 135 of the complaint:

The one-person/one-vote requirement of the equal protection clause of the Fourteenth Amendment does not permit legislative districts to deviate from the ideal population except when justified by a compelling state interest. A plan with legislative districts that do not exceed the ideal population by more than five percent over or five percent under the ideal is presumed not to violate the one-person/one vote requirement of the equal protection clause of the Fourteenth Amendment, but the presumption of constitutionality is rebuttable. Larios, 300 F.Supp.2d at 1341. (emphasis mine)

However, this Motion to Dismiss says:

“[R]edistricting . . . legislative bodies is a legislative task which the federal courts should make every effort not to pre-empt.” Wise v. Lipscomb, 437 U.S. 535, 539 (1978). Despite Plaintiffs’ extensive and immaterial criticism of the Commission, their sole legal challenge is to minor population deviations among districts in Arizona’s legislative map. Consistent with courts’ deference, it is well settled that where, as here, the maximum population deviation is less than 10%, the deviation is considered “minor,” and the Court presumes that the legislative map satisfies one-person, one vote. E.g., Brown v. Thomson, 462 U.S. 835, 842-43 (1983). This presumption can only be rebutted if Plaintiffs show that the deviation results solely from an unconstitutional or irrational state policy. Rodriguez v. Pataki, 308 F. Supp. 2d 346, 365 (S.D.N.Y.), summarily aff’d, 543 U.S. 997 (2004). Plaintiffs fail to rebut the presumption in this case. 

The Complaint itself and the legislative record of the Commission’s activity establish that the minor population deviations result from rational and legitimate state policies, including compliance with Section 5 of the Voting Rights Act (“VRA”) and the other goals in article IV, part 2, section 1(14) of the Arizona Constitution. (emphasis mine)

The remaining sixteen pages of the Motion, as well as the 164 pages of exhibits, would seem to blow the Tea Partisan/Republican lawsuit completely out of the water. That documentation, on my initial scan through it, seems to make a pretty strong case rebutting the Complaint.

Again, reviewing my post from April 29,

I've read through the federal court lawsuit and to my untrained eye it appears the only substantive (but still not necessarily valid) claim is that the GOP plaintiffs (Tea Partisans, such as convicted felon Wes Harris, the first named plaintiff was a co-founder of one of the local Tea Party groups) believe their vote has been diluted by virtue of over populating Republican leaning legislative districts and underpopulating Democratically leaning districts. 

Apparently, based on AIRC counsel characterizing the Complaint as extensive and immaterial criticism of the Commission except for the one question of law, I'm not the only one to have gotten the same impression of Liburdi and Hauser's folly (the lawsuit).

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Unless you've been hermetically sealed away over the last week, you know that Arizona Secretary of State Ken Bennett stepped in a big ol' flaming bag of dog doo-doo of his own making. Last week, we found out that over the course of a few months, Bennett had been going back and forth -- having been egged on by birthers (I would be quite surprised if Wes Harris had NOT instigated that whole mess) -- with the keepers of birth records in Hawaii seeking to confirm that President Obama actually had been born there.

Of course, after we learned, last week, that Bennett had taken the birther bait, he started hearing from Arizonans outraged over this massive error in judgment.

By the way, I offer a hat tip to former Arizona muckraker Nick Martin who reported on this situation for Talking Points Memo and obtained copies of several email messages between Bennett and officials in Hawaii. Bennett late Tuesday finally got what he (settled for) wanted from Hawaii.

Briefly recapping, Bennett had been subjected to a deluge of more than 1,200 calls and emails from the lunatic, birther fringe. Rather than gently, but firmly telling them that the matter had been settled many times over, Bennett took the bait and ended up with egg (or something else) all over his face. By the way, Arizona Republic columnist Laurie Roberts also laid into Bennett quite emphatically in a series of columns this week.

But NOBODY (neither journalist nor public official), to my knowledge, has publicly asked the question that is likely the most relevant: How in the world would Bennett have been able to obtain preclearance for an effort to change how ONE PRESIDENTIAL CANDIDATE would appear (or NOT) on the 2012 general election ballot?  Arizona must obtain said preclearance for ALL changes to voting laws and procedures because of Section 5 of the federal Voting Rights Act.

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Today, according to a press release from Save the Scenic Santa Ritas, the Arizona Corporation Commission apparently voted unanimously to delay construction of a high voltage power line from Tucson Electric Power facilities to the site for a proposed Rosemont Copper mining operation in the Santa Rita Mountains south of Tucson.

Rosemont Copper, the company and the proposed project, has been surrounded by controversy from the get go. In March, the ACC temporarily put the project on hold on a 3-2 vote with Republican Bob Stump voting with Democrats Sandra Kennedy and Paul Newman due to concern over previous exclusion of testimony by intervenor Elizabeth Webb.

That decision apparently caught ACC chair Gary Pierce and (former ALEC bigwig) Brenda Burns by surprise. Pierce later circulated a proposed order that would have dramatically narrowed the scope of what the ACC could consider in the whether to allow construction of the power line to proceed before Rosemont receives federal approval for environmental impact concerns.

However, today's (unanimous) ruling:

"In a major victory for opponents of the proposed Rosemont Copper Mine, the Arizona Corporation Commission (ACC) today voted to delay construction of a high voltage power line until the Rosemont Copper Company obtains major environmental permits for the proposed copper mine south of Tucson."

A great deal of uncertainty apparently still surrounds whether Rosemont will ever obtain those permits.

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From Saving the Scenic Santa Ritas:

May 23, 2012

Arizona Corporation Commission delays Rosemont Copper’s power line

No construction until environmental protection permits are approved

(Tucson, Ariz.) In a major victory for opponents of the proposed Rosemont Copper Mine, the Arizona Corporation Commission (ACC) today voted to delay construction of a high voltage power line until the Rosemont Copper Company obtains major environmental permits for the proposed copper mine south of Tucson.

“This decision recognizes the Commission’s duty to minimize and mitigate the environmental impacts of the massive copper mine before allowing construction of the power line,” says Gayle Hartmann, president of Save the Scenic Santa Ritas, a Tucson-based citizen’s group opposed to the mine.

The five-member Commission voted unanimously to accept language offered by Republican Commissioner Brenda Burns that added key stipulations to the Commission’s decision to approve construction of the power line.

Rosemont will not commence construction of the power line until five key permits necessary to begin construction and operation of the copper mine have been obtained.

Rosemont will pay for all construction, operation and maintenance costs of the power line that will be owned by Tucson Electric Power Company.

If there is any reason to later remove the power line, Rosemont will pay all costs.

The transmission line, which would be built for the sole benefit of Rosemont Copper, is planned for a 12-mile mile corridor that bisects the nation’s oldest grazing research area in the Santa Rita Experimental Range, up the western slope of the Santa Rita Mountains and over its crest to the mine site on the eastern face of the Santa Ritas.

The Commission’s decision requires Rosemont to obtain four environmental permits and one state right-of-way permit prior to beginning construction of the mine on the Coronado National Forest.

These include:

• A “Record of Decision” from the Coronado National Forest that approves Rosemont’s Mine Plan of Operations;
• A Clean Water Act Section 404 permit issued by the U.S. Army Corps of Engineers concerning Rosemont’s proposal to dump billions of tons of toxic mine waste in canyons, valleys and streams;
• Arizona Department of Environmental Quality approval of the U.S. Army Corps of Engineers’ Clean Water Act Section 404 permit to ensure it meets Arizona surface water quality standards; and
• An air quality protection permit that has already been denied by Pima County. Rosemont is now seeking the permit from ADEQ.

In addition, the Commission is requiring Rosemont to obtain a state Land Department right-of- way allowing construction of the power line and an accompanying water line across the Santa Rita Experimental Range.

The massive open-pit mine proposed by Rosemont Copper is opposed by a diverse coalition of private citizens, ranchers, businesses, and environmental groups. During the ACC’s line-siting process, Save the Scenic Santa Ritas, the Tucson Audubon Society, Center for Biological Diversity, and the Sky Island Alliance sought and were granted status as parties to these proceedings.

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Lisa Froelich, Coordinator
Save the Scenic Santa Ritas
8987 E. Tanque Verde #309-157
Tucson, AZ 85749
520-445-6615
lisa@scenicsantaritas.org

Redistricting -- Motion to Dismiss UPDATED 5-22-12 6:30pm MST

At the deadline for response to the lawsuit in Maricopa County Superior Court challenging the Congressional district map, attorneys for the Arizona Independent Redistricting Commission filed a Motion to Dismiss the suit altogether. From start to finish, the AIRC motion attacks the lawsuit as baseless and absurd.

The Complaint uses innuendo, selectively extracted transcript excerpts, and speculation to weave a conspiracy theory intended to cast doubt on the Commission’s work. Lacking any actionable, substantive complaint regarding the redistricting plan – they nowhere allege that the Commission failed to accommodate the substantive constitutional goals, for example – Plaintiffs instead focus on manufacturing flaws with how the Commission complied with the procedural requirements set forth in Article 4, Part 2, Section 1 of the Arizona Constitution.

snip

The Complaint does not contend that the Final Congressional Map fails to accommodate the substantive constitutional goals that form the core of the Commission’s task. Instead, the Complaint alleges various technical violations in connection with the various procedural requirements.

 snip

Plaintiffs do not assert that the Commission failed to accommodate the six constitutional goals before approving the draft congressional map. Instead, Plaintiffs ask this Court to impose new procedural requirements that do not exist and that “intrud[e] into the discretionary aspects of the [Commission’s] legislative process[.]”

 snip

Plaintiffs’ fourth claim alleges that their rights were violated because the Commission did not take an up or down vote on the legislative recommendations made during the public comment period and “treated its responsibility to consider the Legislative recommendations as discretionary.” The requirement to “consider” does not state, direct, or even imply that the Commission must take a vote or any other formal action on the Legislature’s recommendations.

snip

More importantly, the public record on which the Complaint relies shows beyond any doubt that the commission took its obligation to consider the recommendations seriously. The public agendas for the November 29 and 30 meetings included specific agenda items to consider the Legislature’s comments.

 snip


Aside from the bogus legal claims, the Complaint should be dismissed to the extent it ignores this rule in favor of using its allegations as a soap box for irrelevant accusations. “A complaint that is ‘argumentative, prolix, replete with redundancy . . . [and] consists largely of immaterial background information’ is subject to dismissal.”

snip

The Complaint has roughly sixty paragraphs (¶¶ 35-93) of “conspiracy-theory” wind-up that have nothing to do with the claims asserted and serve no purpose other than to prejudice and disparage the Commission, including:
· Allegations concerning Chair Mathis’s application to the AIRC, including that she “omitted critical information” (Compl. ¶¶ 35 – 45).
· Allegations regarding the Chair’s spouse (Compl. ¶¶ 41 – 45).
· Allegations that the AIRC violated the Arizona Constitution in appointing co-vice-chairs. (Compl. ¶¶ 46-48).
· Allegations concerning the AIRC’s procurement of legal services, including that Mr. Kanefield was a “newly minted Republican.” (Compl. ¶¶ 54 – 57).
· Allegations relating to the procurement of the mapping consultant. (Compl. ¶¶ 61-77).
· Allegations relating to alleged violations of the State’s open meeting law, which the Superior Court has previously dismissed. (Compl. ¶¶ 78-93).

Plaintiffs do not even try to connect this “argumentative” and “immaterial background information” with the specific claims for relief.

snip

CONCLUSION
The Complaint asserts a series of violations of constitutional requirements that do not exist or that depend on absurd interpretations of the constitutional procedures. In addition, the alleged open-meeting violation for which Plaintiffs seek relief fails to allege an actual violation of the open meeting clause in Article 4. Accordingly, the Commission respectfully requests that the Court dismiss the Complaint in its entirety. (emphasis mine)

A number of exhibits (such as transcripts from public meetings of the AIRC from last fall) were filed with this motion. I expect to receive them (the exhibits) tomorrow. I expect to add them as an update to this blog post at that time.

Now, for my impression:

What could Lisa Hauser, who represented the first AIRC and litigated a number of similar issues, possibly have said to the people listed as Plaintiffs in this civil action? Could, would or should Hauser have advised them (tea partisans Vince Leach, Lynne St. Angelo and Senator Don "shoot 'em up" Shooter) that they had even a snowball's chance in hell that this complaint would provide them with any "relief?" I can't imagine.

The question rises again as to who in the world would be paying for Hauser and Liburdi to file this lawsuit?

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The Associated Press filed a story today about the other suit (filed in federal court). The issue? That one member of the three-judge panel assigned to the case is Neil Wake. Judge Wake represented Arizona Republicans in redistricting litigation ten years ago. Attorney Michael Mandell cited Wake's experience as a concern, but others, including Paul Eckstein (who also represented the Minority Coalition ten years ago) and current AIRC Democratic counsel Mary O'Grady dismissed those concerns.

Wake recently ruled in favor of Mary Rose Wilcox's claim -- against disbarred former Maricopa County Attorney Andrew Thomas -- that the county must pay the $975K for which Wilcox agreed to settle.

By the way, response by the AIRC to the federal suit is due by close of business on Thursday. Because there is the potential of an actually substantive question in that case, I expect that response to be significantly different than what was filed today.

UPDATE 2:45pm MST 5-22-12


The Associated Press has reported that attorneys for the Republicans challenging the STATE LEGISLATIVE district maps have dropped their request for the federal three judge panel to draw an interim set of maps.

On a related note, an attorney familiar with redistricting cases (but not working specifically on these lawsuits) has said (despite reluctance to voice any certainty) he thinks the AIRC has a good shot at getting both suits dismissed.

Exhibits filed with the AIRC Motion to Dismiss yesterday are found here, here and here.

UPDATE 6:30pm MST 5-22-12


The (Republican) Plaintiffs' Notice of Withdrawal of request for an interim legislative map is as follows:

PLEASE TAKE NOTICE: Plaintiffs withdraw any effort to obtain preliminary injunctive relief to affect the 2012 elections. Plaintiffs have been urging the Independent Redistricting Commission (“IRC”) to meet and discuss a pre-trial schedule and the other matters required by the stock case management report form and form of Rule 16 order, posted on the Court’s website, and a meeting has been suggested but not confirmed for Thursday or Friday, May 24 or 25, 2012. To proceed orderly and businesslike, Plaintiffs had intended to raise the matter of withdrawing preliminary injunctive relief for 2012 at such meeting so that it could be taken up as part of arriving at an overall proposed schedule. To that end, Plaintiffs had offered the Citizens Clean Elections Commission the same stipulation that they reached with Maricopa County and that was filed yesterday. For the sake of efficiency and to avoid any waste of judicial or party resources, Plaintiffs will accelerate their plans, and announce now their intention to bypass preliminary injunctive relief for the 2012 elections. Plaintiffs will continue to pursue injunctive relief to prevent the IRC’s legislative plan, adopted on January 17, 2012, from being used for any other election. 

This raises a few questions, which I will pursue tomorrow (Wednesday). Namely, what meeting is Liburdi (the Plaintiffs' attorney who signed the Notice) talking about; what stipulation was reached with Maricopa County and what role does the Citizens Clean Elections Commission have in this situation?

Obviously, apart from the lawsuit, both the CCEC and each county government have a stake in having new maps finalized for use in the 2012 elections. Maricopa County, I believe, had sought status as an intervenor to make known to the Court that ANY changes to maps for the 2012 election would cause chaos. Legislative candidates have a deadline within days from now to have their nominating petition signatures turned in.

Now, THIS particular turn of events would seem to be very significant, at least to somebody. Back in April, that august daily gossip sheet (a legend if only in the mind of the writers) published by the Arizona Capitol Times (The Yellow Sheet Report) quoted an unnamed Republican source:

FIRST THINGS FIRST (April 27) One source familiar with the legal actions told our reporter today that the primary goal of the lawsuit was to get an injunction against the maps, thus preventing them from being used this cycle. “It’s all about the TRO [temporary restraining order]. Once we get that, then we can litigate the whole thing,” the Republican source said. If an injunction is granted, the source said the attorneys can begin deposing various witnesses – including Mathis, McNulty and Herrera, all of whom refused to comply with the open meeting law investigation. (emphasis mine)

My hunch is that the Republican source was Mike Liburdi, the Plaintiffs' attorney. It sounds like his voice. And it also, in my view, like Liburdi has been known to do, overstates his case and ends up having to backtrack. Obviously, I could be wrong, but it's still my hunch.

Another intriguing aspect of the Notice of Withdrawal is that David Cantelme and his partner are listed as attorneys for the Plaintiffs. I'm not sure if that connection had been made last month with any of the filings that had been reported on here or by corporate media.

Arizona UPRISING -- Days of reckoning approaching?

Some 15 years ago, in a regular column for the Arizona Republic, I described an upcoming populist movement I believed was coming.

By now, most Americans know about Occupy Wall Street.

Some may know that last fall (in October 2011), a couple dozen Occupy protesters were arrested for (technically not yet illegal) passive resistance at Margaret T Hance Park in Phoenix. Those protesters were cited by Phoenix Police, arrested and have been to several court dates for a trial that has not yet been held. Frankly, I wonder why Phoenix city prosecutors are wasting taxpayer money by drawing this out. Nobody was harmed by the protesters and the cases should all be dropped.

Nevertheless, protests did take place and there has been some news coverage to highlight the policy discussions revolving around issues important to OWS.

To me, other recent developments are even more intriguing and hold promise for genuine change. Change to legislative processes in Arizona and in Washington, D.C. that is. Incremental but important changes.

Last month, local attorney and advocate Dianne Post filed informal complaints (the first step) against several public service corporations regulated by the Arizona Corporation Commission. Those corporations, generally investor owned utilities, are known members of the American Legislative Exchange Council (ALEC).

In response to the public pressure being brought to bear on ALEC, a number of corporations have recently cut their ties with the nationwide lobbying group. Those corporations responded, partly as a result of Ms. Post's complaints and partly due to outcry over the role ALEC played in advancing "Stand Your Ground" legislation in a number of states. Stand Your Ground became notorious after Florida teenager Trayvon Martin was killed in Florida.

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Anyway, some of the protest activity surrounding OWS has subsided (for now). But the "99 percent" have begun finding more direct and potentially more directly effective avenues to cause change.

Post's complaints, including this one filed most recently regarding Arizona Public Service (and this one filed last week with the Salt River Project Board of Directors) demand response. Last month, APS declared almost immediately after Post first filed the complaint against it, that it would not renew its membership in ALEC.

SRP, however, because of its status as a quasi-governmental organization, is more insulated from public accountability than utilities regulated by the Corporation Commission. SRP also has a reputation at the Capitol for putting on the best lobby day ("free") lunch for lawmakers during every spring legislative session. SRP's chief lobbyist, Russell Smolden, has also been private sector state co-chair for ALEC for a number of years.

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Besides Post's complaints dogging public service corporations, a group of private citizens this month filed two complaints with the Internal Revenue Service challenging the tax exempt status -- and demanding a full audit of -- the very aggressive right-wing lobbying organization known as the Center for Arizona Policy.

CAP and its current president Cathi Herrod put a great deal of pressure on the GOP supermajority in the legislature to (very ironically) kill an anti-bullying bill and to pass a draconian anti-contraception bill this spring. The website, StopCAP.org also has copies of CAP tax returns and other news and public documents showing how the right-wing lobby has evaded taxes and effectively gained federal government subsidy of its lobbying actions for many years.

The IRS complaints appear to also have been prepared by very civic minded attorneys. (Who said lawyers were all bad?)

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Last, but by no means least, Common Cause filed suit in federal court on Monday seeking to have the US Senate filibuster rule declared unconstitutional. The Senate filibuster has been used effectively and increasingly frequently by GOP members to block Obama adminstration judicial appointments and numerous policy/legislative actions.

Once a rarely used maneuver to allow extended debate, the filibuster is now routinely used to block debate on hundreds of critical issues and nominations. Federal action on the major issues of the day – from tackling the student loan debt crisis, to revitalizing the economy, to requiring disclosure of campaign spending and filling court vacancies – being held up in the U.S. Senate by a filibuster rule that is unconstitutional and was never contemplated by the nation’s founders.

Common Cause believes filibuster abuse is a big reason why most Americans are frustrated with Congress and  believe that the “government no longer works” for average citizens. Common Cause has filed a lawsuit charging that the Senate’s filibuster rule violates the core American principle of majority rule that lies at the heart of the U.S. Constitution.  

Yesterday in the Washington Post, Ezra Klein sized up the situation:

According to Best Lawyers — “the oldest and most respected peer-review publication in the legal profession” — Emmet Bondurant “is the go-to lawyer when a business person just can’t afford to lose a lawsuit.” He was its 2010 Lawyer of the Year for Antitrust and Bet-the-Company Litigation. But now, he’s bitten off something even bigger: bet-the-country litigation.

Bondurant thinks the filibuster is unconstitutional. And, alongside Common Cause, where he serves on the board of directors, he’s suing to have the Supreme Court abolish it.

By the way, last month, Common Cause also filed a complaint with the IRS challenging ALECs tax exempt status.

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So, despite what the corporate media reports (or fails to report) about recent popular movements and protests, there IS HOPE for enacting more humane public policy in the United States, to benefit ALL Americans, not simply the wealthiest 1 percent. But to get there, we must support these challenges to illegal lobbying and filibustering actions that are used far too often by corporate interests to the detriment of the 99 percent.

Redistricting and CD9 Dem primary update

Since we last met...

Well, seriously, the Arizona Independent Redistricting Commission is still working on responses to the two lawsuits recently filed by the loyal opposition (to INDEPENDENT redistricting). The first deadline for response is May 21, so briefs in response should be filed in both federal and state court next week.

AIRC exec director Ray Bladine tells me that the legislature approved a Fiscal Year 2013 (begins July 1, 2012) appropriation of $1.45 million and that those funds will be available before the end of the current fiscal year. That should take the pressure off of the Commission for the short term. However, with the two new lawsuits, the Open Meeting matter still pending in the Arizona Court of Appeals, the probability is very high that the GOP supermajority in the legislature will file yet another suit to completely challenge the right of the voters to have established the AIRC in the first place. I have to figure even the FY 2013 money will be used up quickly.

AIRC staff will meet with state auditors again this week. Bladine says the auditors have told him they want to issue their report on the AIRC on or shortly after July 1.

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It became blatantly obvious to me last week, that there must be a reason why Cherny's campaign has been focused on throwing mud instead of defining their candidate.

Perhaps having me take about ten days off from writing about the Congressional District 9 Democratic primary will give Andrei Cherny the opportunity to refocus his campaign on telling voters why they should bother considering a vote for him, instead of continuing to whine about perceived attacks from his opponents.

All three Democratic contenders appeared last Tuesday at the LD26 (Tempe) Democrats meeting to make a pitch for support. David Schapira and Kyrsten Sinema were (and are) able to demonstrate successful political office experience. Both have served in the Arizona Legislature and have worked hard to pass important legislation working in a hostile (to Democrats) environment.

Cherny, on the other hand, lost a California legislative race ten years ago, lost (but put up a good showing) in the race for State Treasurer (here in Arizona) in 2010 and beat Rodney Glassman out for chairman of the Arizona Democratic Party in January 2011. Rodney Glassman was hardly a solid competitor but Cherny and his supporters had to bend some rules to get him even considered. So, there are issues yet to be explored with that situation. Not the least of which is that he abandoned ship, so to speak, without having prepared the state party organization to field enough strong candidates to run for seats in the Arizona House and Senate. Leaving Republicans to win by default only prolongs the outrageous tide of right-wing and ALEC-related public policy that we've experienced for the last two years at the State Capitol.

The bottom line, in my view, for Cherny in this race is for him to show that he can do more than complain about people criticizing him on Twitter. Can Cherny make a case for himself?

During the LD26 meeting last Tuesday, Cherny was met with some not so friendly questioning. One of those people asking him difficult questions works as a public defender. So, I figure she pretty well knows how to cut through BS. Then I also asked Cherny about his political accomplishments. He had a difficult time coming up with any.

I mention this because late last week, Howard Fineman of the Huffington Post wrote about how we know very little about the grown up Mitt Romney.

But a key reason is that people know so little about the grown-up Mitt Romney. And that, in good measure, is Romney's fault.

First, his primary campaign was predicated not on touting himself or the details of his business and government accomplishments. Instead, it was built on dropping bombs on a series of hapless GOP foes.

His strategy for the general election is pretty much the same: attack. Now, it is to attack the president for every real and perceived weakness in the American economy. Romney wants to talk about joblessness, underwater mortgages, foreclosures. He wants to talk about himself solely as a successful businessman.

Romney has several reasons for not wanting to dwell on his full narrative. They include a natural reticence, concerns about the salability of Mormonism, a desire to keep the focus on Barack Obama, and a fear that to talk about his life would be to dwell on his personal wealth and family connections. (emphasis added)

I am NOT suggesting Andrei Cherny is anything like Mitt Romney. In contrast, I AM saying Cherny's campaign has started out like Romney's. But Sinema and Schapira are NOT hapless foes.

Cherny best start treating the voters of CD-9 like they've got more sense than to fall for his "look over there (and not at me)..." strategy. This race may not be won by the candidate with the most cash.

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By the way, tomorrow, May 15, Progressive Democrats of America (Phoenix chapter) will meet at the Spaghetti Factory on North Central Ave at 6:30pm. On the agenda, consideration of whether to endorse either Kyrsten Sinema or David Schapira in the CD9 primary. PDA says Cherny did not seek its endorsement.

Arizona's new Ninth Congressional District -- Dem primary

Readers who are friends of mine on Facebook already know that my Facebook page was censored Thursday evening, apparently by someone(s) flagging a link I posted there as either being spam or abusive. The censored link was to an azcentral.com story about Andrei Cherny's campaign tactics. I also mentioned my disappointment with an email he sent out that day attacking his CD9 Democratic primary opponent Kyrsten Sinema.

After I posted the link (the first time), Andrei asked me, in a facebook chat, what I objected to in the email. I told him. He took exception, played the victim and very shortly thereafter, my facebook page was censored.

That is VERY serious stuff.

Anyway, I called Andrei on the phone, left a voice mail message actually, asking him to call me. He returned my call and further played the victim AS WELL AS claiming that he has NO CONTROL over what his "thousands" of followers do.


Having seen people's facebook profiles having been hacked into, I've reported actual spam posts before. Reflecting back on those times, I recall that Facebook does ask if the flagged post is abusive and if it is about (the person flagging the post). So, Andrei's claim of ignorance of the situation rings overwhelmingly hollow.


Anyway, on Friday, rather than apologize to anyone, Andrei's campaign sent an email out under Terry Goddard's name.

Regular readers will recall that I called out Kyrsten back in January when she resigned from the senate. At that time, she expressed some things about the process to replace her that I found troubling. I believe she made a mistake then. But I do not believe her mistake revealed a character deficiency.

However, the way Andrei has handled this situation leaves a very different impression on me.

It's understandable that Goddard would want to be helpful, but I am not convinced that email will get the job done. Goddard said,

Obviously, Andrei and Kyrsten disagree, and national security is an issue that matters both in November and in Congress. It doesn’t mean Kyrsten is unpatriotic or a bad person. But it does mean her position is outside the mainstream of the Democratic Party and not in sync with Arizona’s Ninth District. 

Had THIS been Andrei's initial statement on that particular apparent policy disagreement, I would be completely fine with it. Well, almost completely. It's still marginally questionable for Goddard to claim that Kyrsten's position is "not in sync with Arizona's Ninth District."

Instead, THIS was damage control for Andrei and his campaign, which messed up REALLY bad.

Here's how Andrei's first email (from Thursday) opened:

Yesterday, the respected Washington publication The Hill examined Kyrsten Sinema's highly troubling national security record. Kyrsten Sinema's own words demonstrate that she opposed a military response to hunt down Osama bin Laden, which puts far outside the mainstream of the Democratic Party.

WTF does that even mean? First off, to my knowledge, Kyrsten Sinema has never either served in any office or job whereby she would have developed anything resembling a "highly troubling national security record." That's something one might expect to be claimed about a former National Security Advisor who failed to protect the United States from a terrorist attack. You know, like Condoleezza Rice, who was National Security Advisor to George W Bush during the time leading up to September 11, 2001.

So, who in their right mind could even come close to considering Andrei's statement anything BUT hyperbole and distortion?

Cherny's Thursday email included several other insinuations apparently intended to make people overlook the fact that Sinema is an extremely thoughtful and intelligent individual and was a hard working member of the Arizona Legislature. Of course, she also did have real policy disputes with Democrats at times. But I will not get into those right now.

Responding to Cherny's Thursday email, Sam Coppersmith, a former Congressman and chair of Sinema's campaign sent out an email saying (in part):

Incredibly, it’s 2012, and Andrei Cherny is attacking Kyrsten Sinema for opposing George W. Bush's wars. I’ve heard of triangulation, but that’s ridiculous. Is his name Andrei Cherny—or Dick Cheney?

Actually, Cherny's email sounded to me more like something Karl Rove would concoct.

Anyway, the story on azcentral recounts Andrei's campaign, as a 26-year old, for a seat in the California Assembly. That history is very pertinent to today's situation. The distortion he put forth the other day about Sinema is very much the same kind of thing reported about his campaign ten years ago.

From azcentral.com:

Cherny drew criticism or lost endorsements from a host of Democratic leaders, including the National Organization for Women's local chapter, former Assembly speaker Antonio Villaraigosa, then-Los Angeles Councilwoman Cindy Miscikowski, Los Angeles Democratic Party Chairman Eric Bauman and three Democratic assemblymen.

Levine and others complained the mailers were misleading since he was rated pro-choice by several groups and did not work for the assemblyman during the contraception vote.

Critics blasted the mailers' racial undertones. Among the critics was Mike Shimpock, a Los Angeles-area campaign consultant who worked for an assemblyman who endorsed Levine because of the mailers' "blatant race-baiting and patently false accusations." (emphasis in the original)

Cherny told Republic reporter Rebekah Sanders that the claims made about him by those critics in California were untrue. Which is the same thing he says about criticism leveled at him today. However, the Cherny's protestations then apparently did not sway the people who withdrew endorsements, financial backing and support. And apparently, he did not persuade enough voters.

My concern in this situation is that Andrei Cherny takes as a personal attack any criticism leveled at him but when he is criticizing his opponents, it's completely justified, if only in his mind. Thin skin on a politician is usually quite unbecoming.

For the moment, I will refrain from expounding on what numerous people saw as a questionable tactics back in January 2011 when Cherny entered the race to become chairman of the Arizona Democratic Party. But that may warrant further discussion depending on how things move from here.

Arizona UPRISING -- Legislative mischief over with for now?

Of course, in the last few days, the GOP supermajority in the Arizona Legislature passed a resolution authorizing it to intervene in the lawsuits against the Independent Redistricting Commission, so there IS mischief that can still be carried out -- BUT -- they ended the 2012 regular session SINE DIE this evening.

So, the Russell Pearce welfare check for $261,000 IS actually dead.

Further, they passed some amazingly BAD legislation. One piece of which is the "Janice K Brewer wants to out do Scott Walker" bill, HB2571. Also known as the Spoils System, it subjects state workers to undue political pressure and makes it incredibly easy to shut down any kind of dissent or whistleblower who intends to report on corruption in any area of state government. Do you believe that to be a good idea?

My hope is that this issue will be taken up by labor advocates and challenged at the ballot. There is a process for that to take place. It's called REFERENDUM.

When something develops along those lines, I WILL report on it in this blog.

In the meantime, we should all give thanks to God or who ever else you would like to acknowledge that they cannot do more damage to the rights of the Middle Class, or further endanger women's health or infringe any more (than they already have) on our civil liberties.

And I will follow up on the legislature's efforts to intervene in existing lawsuits or otherwise sue the AIRC in the days to come.

Pearce giveaway -- It's all about the MEME. UPDATED 4pm MST 5-3-12

The Arizona Republic FINALLY finds its voice, telling the state legislature,

If these Pearce supporters connive at this 11th hour to "reimburse" Pearce, let it be known they are fooling no one. They are using scarce state funds to hand Russell Pearce a pay package of more than a quarter million dollars for the inconvenience of having experienced a recall, and to help finance his return to office when he runs again this fall.

That includes making changes to the law that allow him to get a payoff somewhere down the line.

That, simply, is an outrage that cannot stand.

The state Legislature declined yesterday to consider a tiny increase in funds for the developmentally disabled.

The Legislature decided yesterday to leave over 100,000 poor kids without access to health care, languishing instead on waiting lists.

The Legislature yesterday left highways untended, needed schools unbuilt, and uncounted other state services grievously unfunded.

Don't you dare, in the security of your back rooms, use the confusion of the 11th hour of the legislative session to cut a check to Russell Pearce.

Don't you dare.

-----

But they dared. And they will continue to dare. Will they succeed? I don't know. But I am certain they will continue to try.

How and why do they think they can get away with it?

It's ALL ABOUT THE MEME.

Tuesday evening, after reading a tweet posted by Tucson attorney and former Assistant Attorney General Vince Rabago, I reviewed several local news stories on the issue (and posted my findings to this blog). There was a common thread to all of them. First, proponents of the $261,000 gift to the LOSER of last fall's LD18 Senate recall election all spoke to reporters as if the Arizona Constitution MANDATES or commands the legislature reimburse Pearce for the expenses he reported for his failed campaign.

Second, NONE of the veteran legislative reporters even questioned that assumption.

THAT should be troubling to anyone with any concern for how laws and public policy decisions are made at the state capitol. Freedom of the press has, unequivocally been co-opted by "market forces." If the people who pay Howie Fischer and Jim Small and Luigi del Puerto were to demand that they ask the right questions and challenge those to whom the power of Arizona voters has been delegated, this would never have happened.

But I must digress, for the moment.

Those news stories contained this simple message expressed invariably in similar words in each,

 the Arizona Constitution requires the Legislature to reimburse the “reasonable special election campaign expenses” of any recalled public official.

...he was approached by several Republicans concerned about a constitutional provision requiring recalled elected officials to be reimbursed. 

Montenegro said that means lawmakers have a constitutional responsibility to ensure Pearce has his expenses reimbursed.

 Sen. Steve Smith, R-Maricopa. “We’re constitutionally bound to do it.” 

And from Laurie Roberts' blog at azcentral:

In a discussion with readers on my Facebook page, Rep. Brenda Barton, R-Safford, wrote that the state is obligated to pay Pearce. 

And then Wednesday evening, Facebook friend, Robert Warrington shared the following message he had received from state Sen. Judy (NO SUSTAINABILITY) Burges,

On Wed, May 2, 2012 at 9:54 PM, Judy M. Burges wrote:
Robert: Watch the committee hearing held today and you will hear what the Constitution says about your issue.

Also from the Arizona Republic on Wednesday,

An Arizona legislative committee on Wednesday passed an amendment that sets up a framework for recalled Sen. Russell Pearce to seek repayment for costs incurred during the recall election. If Pearce requests the money, it could lead to the state writing a check for about $261,000 directly to the former Mesa lawmaker.

The bill still needs the final approval of both the House and Senate, and it's unclear if it has the votes. It is expected to be on today's agenda in both chambers.

Perhaps the biggest Russell Pearce sycophant at the capitol, Sen. Andy Biggs(hot), had this to say,

Biggs said the amendment applies not only to Pearce but to any state, county or local official who faces a recall election.

He said the definition of reasonable campaign expenses should be left to the governing body considering the request. An applicant would have to file a list of campaign expenses.
"But for that recall election, would that officer have had to expend special election campaign money, whether he had to raise it or get it from somewhere else?" he asked.

Biggs took issue with Lujan's argument that this effort was being done quickly and quietly at the end of the session. "This has been debated in the halls of this body, in the press and in the public for quite some time," he said. "And if you're concerned about taxpayer dollars, maybe the cost of the election ought to be considered."

Pearce has said he doesn't know if he will seek reimbursement or not.

The fact of the matter is that there is NO SUCH MANDATE. And even though the Republic's editorial was unequivocal in its judgment of this whole situation, none of them, not even Laurie Roberts who has been very clear about her opposition to the payout, have even addressed the issue of the MEME.

None of them has questioned the assumption or presumption that the legislature has a duty to provide the funds. None of them appears to have even recognized that the Pearce sycophants are refusing to listen or consider anything other than what they are proclaiming to be their duty.

They will continue to defy sound legal reasoning. They will continue to defy rational approaches to this matter. They will continue to use the MEME to thumb their noses at the voters they are supposed to represent (Talk to the hand!). And they will continue to use the meme to convince the Tea Partisans that they are justified in this unconscionable act.

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Now, about that ridiculous claim:

Vince Rabago has practiced state and federal constitutional law for nearly twenty years. He scoffed at the effort to reimburse Russell Pearce.

Any Russell Pearce cash-back scheme is clearly unconstitutional and illegal. Simply put, the Arizona Constitution does not intend to pay back someone who gets ousted in a recall. The only plausible interpretation of the actual language used in the Arizona Constitution is that it provides for reimbursement of an incumbent official who wins a recall election. The language in Article VIII, Section 6 of the Constitution, provides for enacting a "provision for payment by the public treasury of the reasonable special election campaign expenses of such officer." But under Arizona law, an 'officer' -- in the context of elected officials -- is clearly defined as 'the incumbent of any office.' Because Russell Pearce did not win the recall election, he is not "the incumbent of any office" and therefore cannot be legally reimbursed under the Constitution. 

Rabago continued, "The Constitution thus allows for payment of reasonable campaign expenses of an incumbent who wins a recall, but the Constitution does not permit or require reimbursement of a former officer. And, you can only know what reasonable 'expenses' are after an election occurs, which further supports the clear meaning of this provision. After the dust of the recall election settles, such 'officer'" ('incumbent') can be reimbursed. This is also the only commonsense interpretation of the Arizona Constitution because it makes sense to reimburse an official who remains the incumbent and was unfairly forced to spend money to defend their seat in a recall election. A recalled officer who maintains the trust of voters and wins the recall should not have to pay for the unnecessary recall campaign because the voters have effectively decided that the officer should not have been recalled in the first place. But it makes absolutely no sense to give a cash rebate to a bad politician who gets kicked out of office by the voters. It is as simple as that. (emphasis added)

In short, the effort to pay Russell Pearce is unconstitutional and illegal.

The Arizona Constitution has the following relevant language:

"No recall petition shall be circulated against any officer until he shall have held his office for a period of six months.... (Art. VIII, Section 5.)

Article VIII, Section 6, then states: "The general election laws shall apply to recall elections in so far as applicable. Laws necessary to facilitate the operation of the provisions of this article shall be enacted, including provision for payment by the public treasury of the reasonable special election campaign expenses of such officer." (Art. VIII, Sec. 6.)

"Such officer." So, what does officer mean?

"Officer" is clearly defined under Arizona law as the incumbent of any office. A.R.S. § 38-101(3). Because Russell Pearce did not win the recall, he is not the incumbent and cannot be legally reimbursed.

The Arizona Constitution thus provides for the payment of reasonable campaign expenses of "such officer" (i.e., "such incumbent"). The Constitution does not say reimbursement of "such former officer." 

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Until someone gets their attention, and I'm not sure even the Republic's editorial will do that, the Russell Pearce sycophants in the Arizona Legislature will continue to act as if they are completely justified in this foolish endeavor.

Let's not even get started on what things those "honorable" representatives of the voters REALLY have a duty to see get funded... I'm confident many readers can come up with a substantial list of things this bunch of fools has refused to fund despite constitutional mandate to the contrary.

UPDATE 4pm MST 5-3-12

Reportedly, the Arizona Legislature is preparing to end the 2012 regular session (Sine Die) this afternoon or this evening. And to the end, Pearce sycophant Sen. Steve Smith clings to the meme.

Pearce backer Sen. Steve Smith said the bill was not advanced "because people like him, to give him money," but rather because "we have to do it."  

The Arizona Republic even repeated the meme without questioning it in a story posted a few minutes before noon.

The Arizona Constitution includes a provision "for payment by the public treasury of the reasonable special election campaign expenses" of an official in a recall election. It requires the Legislature to set up a process, which supporters of the effort said was their intent with Senate Bill 1449.

However, despite their protestations to the contrary, SB1449 as amended by the conference committee yesterday, specifically was for Russell Pearce.

Also from the Republic story:

"It is suffering a slow death," said Sen. Steve Smith, R-Maricopa, who was among a handful of Republican lawmakers behind the effort. "It's just unfortunate. This wasn't about Russell Pearce. It didn't give him any money. It did absolutely nothing other than set a framework." (emphasis added)

But here is what the bill, as amended says:

A. THE OFFICER AGAINST WHOM A RECALL PETITION HAS BEEN FILED AND WHO DOES NOT OFFER HIS RESIGNATION WITHIN FIVE DAYS AFTER THE PETITION IS FILED, SHALL BE PAID HIS REASONABLE SPECIAL ELECTION CAMPAIGN EXPENSES FROM THE GENERAL FUND OF THE STATE, COUNTY OR MUNICIPALITY AS DETERMINED BY THE
LEGISLATURE FOR A STATE OFFICER, OR AS DETERMINED BY THE APPROPRIATE LOCAL GOVERNING BODY FOR COUNTY OR OTHER LOCAL OFFICERS.

B. THE AMOUNT SHALL BE PAID AFTER THE SPECIAL ELECTION HAS BEEN HELD AND AFTER THE OFFICER WHO WAS SUBJECT TO THE RECALL ELECTION SUBMITS A VERIFIED ITEMIZED ACCOUNT OF CAMPAIGN EXPENSES TO THE APPROPRIATE GOVERNING BODY. THE VERIFIED ITEMIZED ACCOUNT SHALL BE FILED WITHIN TWO YEARS AFTER THE SPECIAL ELECTION. IF THE ELECTIVE OFFICER IS A STATE OFFICER AND THE VERIFIED ITEMIZED ACCOUNT OR ANY PART OF THE ACCOUNT IS APPROVED BY THE LEGISLATURE, THE LEGISLATURE SHALL CERTIFY THE ACCOUNT AND DELIVER IT TO THE DEPARTMENT OF ADMINISTRATION FOR SUBMITTAL TO THE STATE TREASURER AND IT SHALL BE PAID AS OTHER CLAIMS AGAINST THE STATE ARE PAID. FOR OTHER ELECTIVE OFFICERS, THE GOVERNING BODY SHALL CERTIFY THE AMOUNT AND SUBMIT THE ACCOUNT TO THE APPROPRIATE FISCAL OFFICER FOR PAYMENT.

(new language added to Arizona Revised Statutes in legislation is always capitalized in the bill).

Sec. 3. Retroactivity
Section 19-218, Arizona Revised Statutes, as added by this act, applies retroactively to expenses incurred for a recall election held in November, 2011

The claim made by Pearce sycophant Steve Smith is partly true and partly false. This would indeed only have established a framework. And there are other elected officials to whom these provisions potentially would apply (recall efforts are now underway for school board members in Tucson, and council members in various cities and towns in Arizona have been subject to recall elections). But adding the retroactivity clause makes it very clear that Russell Pearce is the person for whom they want to enact this provision.

Nevertheless, let them adjourn the session without any more mischief. 

Arizona UPRISING -- Pearce reimbursement subterfuge

Last month, Russell Pearce sycophants started a meme that the state constitution REQUIRES Pearce to be reimbursed for his expenses in last fall's successful historic (unprecedented) recall. Recall, that is, that Pearce was the first sitting Arizona lawmakers to be thrown out of office by a Constitutionally proper voter initiated special election.

Voters in Pearce's Mesa district unequivocally demanded he be removed from office. End of story, right?

According to today's (May 1) East Valley Tribune:

Rep. Steve Montenegro, R-Litchfield Park, said the Arizona Constitution requires the Legislature to reimburse the “reasonable special election campaign expenses” of any recalled public official. He said while there is not any money in the proposed budget at this point to deal with it, he does not want to set a bad precedent by ignoring what he sees as a mandate. (emphasis added)

As it turns out, though, Pearce reported spending no money of his own on his unsuccessful race. Instead, the $260,000 came from not just individual donors but a host of political action committees representing special interests at the Capitol.

But Pearce, who was Senate president, said if he takes the money — something he has not yet decided — he does not intend to seek out those who gave him the cash in the first place to reimburse them.

Isn't that special? Pearce will only GRUDGINGLY take the money if the legislature succeeds in passing a bill to appropriate it. But would Janice K Brewer sign the bill? From the Arizona Capitol Times, as posted on the National Conference of State Legislatures' website:

The day after the 2010 general election, Pearce said on television that Governor Brewer owes her election to him because she went from underdog to frontrunner after signing Senate Bill 1070.

But, back to the current meme. On April 26, Arizona Capitol Times editor Jim Small reported that Montenegro started circulating a letter calling for the reimbursement.

House Speaker Pro Tem Steve Montenegro said he began circulating the letter after he was approached by several Republicans concerned about a constitutional provision requiring recalled elected officials to be reimbursed.

“There’s a lot of legislators that have raised the issue,” the Litchfield Park Republican said. “Some members have spoken out, and it’s our constitutional duty.”

The Arizona Constitution requires the Legislature to enact laws to govern recalls, “including provision for payment by the public treasury of the reasonable special election campaign expenses of such officer.”

Montenegro said that means lawmakers have a constitutional responsibility to ensure Pearce has his expenses reimbursed.

“If we don’t do it, that sets a precedent,” he said. (emphasis added)

Arizona Republic columnist Laurie Roberts rightly criticized this fools errand and cited another Pearce sycophant, Brenda Barton.

In a discussion with readers on my Facebook page, Rep. Brenda Barton, R-Safford, wrote that the state is obligated to pay Pearce. The blame, she says, goes to Randy Parraz and the “union and community organizers” who instigated the recall.

“Were we to ignore this provision of the Constitution, Mr Pearce would have a clear case for legal action,” she wrote.

Perhaps he could get some pointers from Maricopa County Supervisor Mary Rose Wilcox, who’s already suing us. (emphasis added)

Barton's bio makes no mention of her having attended law school or passing the Bar exam. Besides making apocryphal pronouncements about legal issues, I've witnessed her making questionable claims about biblical interpretations on Facebook.

Then this evening, Arizona Capitol Times' Luigi del Puerto reported:

Now some lawmakers are considering pushing the legislation in the final days of the 2012 legislative session.

“The big question is, you know, where we put it,” said Sen. Steve Smith, R-Maricopa. “We’re constitutionally bound to do it.” (emphasis added)

The Arizona Constitution requires the Legislature to enact laws to govern recalls, “including provision for payment by the public treasury of the reasonable special election campaign expenses of such officer.”

How convenient, these "tools" (Barton, Montenegro and Smith) add more inflammatory fuel to the fire by blaming Randy Parraz and Democratic Maricopa County Supervisor Mary Rose Wilcox for the "required" additional expenditure of $260K in taxpayer funds because of the recall election.

By the way, in the quotes above, I've put the meme in bold and italics.

However, Barton, Montenegro and Smith are not the only sycophants in this situation. NOWHERE in any of these stories do the Arizona Capitol Times or Howie Fischer (who wrote the EV Tribune story) do anything other than REPEAT the false notion that Pearce must be reimbursed.

Does a newspaper with several reporters well versed in reading and understanding the Arizona Constitution and Arizona Revised Statutes get to claim ignorance by failing to ask anyone to point to a lawful definition of who is an "officer" covered by this provision?

Tucson attorney Vince Rabago, who ran in 2010 for the Democratic nomination for state Attorney General, tweeted today,

Russell Pearce payback illegal: AZ Constitution permits reimbursement of "officer" but AZ law defines "officer" as incumbent, not former.

Now, obviously Rabago is not the Arizona Supreme Court and therefore is not the final arbiter of what ambiguities in the Constitution actually mean. But I have to figure that at minimum he posed the question that needed to be asked.

And what about the "respected professionals" at the Arizona Capitol Times (as well as Howie Fischer who wrote the EV Tribune story cited above)? Might they be guilty of journalistic malpractice?

As the saying goes, no bill proposed in the current session of the Arizona Legislature is dead until the session ends.