Zera's Blog

A Citizen's View from Main Street

Russell Pearce, Recalled Arizona Senate President, Could Get State Reimbursement For Campaign


Maricopa County Sheriff Joe Arpaio, standing i...At least one Arizona state senator thinks that an obscure provision in the state constitution could entitle recalled state Senate President (R) to money from the state.

State Sen. Jack Harper (R-Surprise) said that his reading of Article 8, Part 1, Section 6 of the state constitution would allow Pearce to ask the state to reimburse the cost of his unsuccessful campaign to fight being recalled from office this week.

According to records on the Arizona secretary of state’s office website, Pearce raised $230,282 for the recall campaign and spent $159,587. Pearce, the architect of Arizona’s controversial immigration law, lost the recall election in his Maricopa County district to fellow Republican Jerry Lewis.

This raises an interestin­g question of constituti­onal law.

Article VIII

Section 6. 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.

But looking further (figurativ­ely) – Article VIII again:

Section 5. No recall petition shall be circulated against any officer until he shall have held his office for a period of six months, except that it may be filed against a member of the legislatur­e at any time after five days from the beginning of the first session after his election. After one recall petition and election, no further recall petition shall be filed against the same officer during the term for which he was elected, unless petitioner­s signing such petition shall first pay into the public treasury which has paid such election expenses, all expenses of the preceding election.

Now section 6 seems to apply to reimbursem­ent for the costs of a previous, failed recall – not a current successful one.

The way I read this, it says that if an attempt to recall an official fails, those who try a second recall must first reimburse the state for its expenses in the first recall. From that money, the state reimburses the official for his campaign expenses in fighting the recall.

I can see where the state does not want to face recurring expenses for repeated recalls against the same official, and I can see where a restriction like this on the right of petition needs to be in the constitution, but I also see problems.

  • This imposes a barrier to additional recall attempts.

What would this barrier look like? If you charge people to sign a petition, you are going to have a harder time getting the signatures you need. If you ask for donations, you risk both alienating sympathizers and not collecting enough money. If you hold fund raisers, you risk running afoul of the requirement that the petition signers must, according to the constitution, be the source of the funds.

  • The burden does not fall on the people who failed to recall, but on subsequent petitioners.

This creates the possibility of a party running a fake recall in order to undermine an expected genuine recall. This poses a viable problem for honest people making legal petition for a redress of grievances.

  • If the constitution is interpreted narrowly and the incumbent is reimbursed win or lose, how much is reimbursed?

What is “reasonable” expenses? Per diem and travel? Costs not paid by the campaign? If it is the amount the campaign is in debt, this creates an incentive to spend beyond actual donations – undermining personal responsibility and tilting the playing field in favor of the incumbent. If the entire amount, then what happens to the funds donated to the campaign? Are they returned to the donors? Are they kept for future campaigns? This creates another avenue to unfair political campaigning.

I think we have the potential for unintended consequences here.

Article II:

Section 25. No bill of attainder, ex-post-facto law, or law impairing the obligation of a contract, shall ever be enacted.

Because there is no law covering reimbursem­ent, any law written now would also not cover this recall.

An ex post facto law is a law that retroactively changes the legal consequences (or status) of actions committed or relationships that existed prior to the enactment of the law.

OTOH, the state constituti­on mandates such law. Failure to have it on the books means that every state legislatur­e since adoption of the current constituti­on has failed to comply with it.

Article II:

Section 32. The provisions of this Constitution are mandatory, unless by express words they are declared to be otherwise.

Ouch.

Just to add insult to injury, the Arizona State Constitution does not seem to include a statement of adoption, ratification, or enactment.
Read the Article at HuffingtonPost

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November 11, 2011 - Posted by | Campaign Finance, Constitution | , , , , , , ,

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