Recall has been a part of Arizona since it attained statehood, and the past few years have seen some remarkable instances of its use. This very week, organizers launched a recall effort against a legislator.

In that context, I’m pleased to provide space for an insightful guest post today, by attorney Joshua Spivak. Among other accomplishments, he wrote his master’s thesis on the subject of the history of the recall (“back in 1998 when no one was paying attention to the subject”). He has authored one of the very few peer-reviewed academic articles on the subject for California History, and he has begun work on a book on the subject. I welcome Joshua, and invite your own thoughts and comments. More of his bio, and link to his own blog, are below the post.

Here’s Joshua:

Following on the success of the 2011 ouster of State Senate President Russell Pearce, immigrants’ rights groups and others are now aiming at a more prominent official—Maricopa County Sheriff Joe Arpaio. The recall attempt has already seen some bizarre theater, but a look at the use of the recall around the country will show that the anti-Arpaio forces have a massive hill to climb in order to get anywhere near the ballot.

Maricopa County Sheriff Joe Arpaio (photo by Gage Skidmore)

Maricopa County Sheriff Joe Arpaio (photo by Gage Skidmore)

The recall fight itself has already been the scene of some absurd behavior, with some pro-Arpaio groups looking to the courts to stop the recall. A pro-Arpaio group called the “Citizens To Protect Fair Election Results” sent a cease and desist letter to recall petitioners, claiming that the recall attempt “rises even to the level of criminal conspiracy and enterprise” and that it “violated the free speech, equal protection and due process rights of the majority of county voters who re-elected the sheriff.” While this type of argument is frequently made against recalls as a political statement, it is rare to see it used to threaten legal action. Most likely any such claim would eventually be laughed out of court.

There is also a more legitimate question of whether Arpaio can be recalled so soon after being reelected. Arizona has provision, which mimics that of many other states, stating that recalls cannot be launched until six months after an official is elected. However, unlike in most states, Arizona law appears to say that does not hold true for a reelection. Under this reading, there shouldn’t be any concern for the petitioners to start gathering signatures. In fact, they claim to already have 150,000.

These legal issues may not stop the recall—though they are likely to cost the recall proponents some money in battling them—it is actually practical considerations that are the bigger concern. The sheer number of signatures needed to get on the ballot—335,000 valid signatures from registered voters—is incredibly daunting. To put that in context, only three recalls in U.S. history have gotten on the ballot needing more signatures—California Governor Gray Davis in 2003 and Wisconsin Governor Scott Walker and Lieutenant Governor Rebecca Kleefisch in 2012. This would be by far the largest numbers of signatures ever needed to recall a local official.

There have been plenty of recalls attempted—47 of California Governors alone—but they rarely get on the ballot. Even those that do make usually need fewer signers. The recall attempt against Arizona Governor Evan Meacham in 1988 (which was short-circuited by his impeachment and conviction) needed only 216,746. There have been plenty of attempts to get massive amounts of signatures for other officials, but they invariably fail. In Michigan, petitioners reportedly got 500,000 signatures to recall the Governor. But that was nowhere near enough to get on the ballot.

But it is not just the sheer number of signatures that will cause a problem. Ancillary evidence suggests Arizona’s election commissions may take a stricter approach to signatures than in other states. In some recent recall attempts, Arizona seems to have tossed out signatures more frequently than other states. This would mean that the signature gatherers would need significantly more than 335,000 signatures to get on the ballot.

There is no clear answer on how many signatures are likely to fail. One Michigan observer claims that a 15 percent failure rate is a good rule of thumb. In California in 2003, the signature failure rate for the Gray Davis recall was 18 percent. Due to a quirk in Wisconsin’s law—the state allows all eligible voters to sign, as opposed to Arizona and other states that require the signers to be registered—the Scott Walker recall is not a good comparison.

In the Russell Pearce recall, where petitioners submitted more than 18,000 signatures, they eventually ruled that 10,365 were valid, a more than 40 percent failure rate. The attempted recall of Phoenix City Councilman Michael Nowakowski is an even stronger example. The petitioners needed 2,329 signatures. They originally handed in more than 5,000, and they missed by 24 signatures. If these two notable rejection rates are a guide, the anti-Arpaio forces may need more than 500,000 to get to Election Day.

Another potential hurdle is that sheriffs are rarely the subject of recall vote. Since 2011, there have been well over 325 recalls that have taken place in the United States. Research suggests that only two have been against sheriffs, one in Colorado and the other in North Dakota (and both sheriffs survived the vote). There have been a number of attempts against sheriffs or other police chiefs, including one prominent attempt against the San Francisco Sheriff after he was nearly kicked out of office, but they have not gotten the signatures to get on the ballot. It could be Arpaio, who is likely the most well-known local law enforcement officer in the country, is different. The Arpaio recall would not be based on malfeasances but on more straightforward political or policy reasons. There are not too many voters who don’t have an opinion on Sheriff Arpaio, and, as he may be seen as more of a political figure than many of the other sheriffs, he is not likely to gain the deference from possible signers.

We are already seeing the problems with the Sheriff Arpaio recall play out. The recall group has already said that it cannot afford any more paid signature gatherers, and will rely on volunteers. Not having enough cash is always the big sign of a sputtering recall effort, so the recall may already be succumbing to the difficulties of gathering so many signatures.

The potential recall of Sheriff Arpaio is a sure-fire political maelstrom for the state. However, the basic hurdles endemic to the recall mean that the anti-Arpaio forces have their work cut out for them.

This guest post was written by Joshua Spivak, a Senior Fellow at the Hugh L. Carey Institute for Government Reform at Wagner College. He blogs at http://recallelections.blogspot.com/

The Arizona Secretary of State’s Office has just confirmed that Olivia Cortes has withdrawn from the recall election that has been called in regard to State Senate President Russell Pearce.

According to an email sent from that Office, “Mrs. Cortes will still be on the ballot, but there will be signs posted at the polls and posted on the Secretary of State’s site.”

Here is a news story about her withdrawal and some history of this race.

And here is the withdrawal form that Cortes signed:

 

Lawyers may not be tea-leaf-reading kind of folks, but even those famously left-brained professionals must see the signs.

Oddity is all about us, people. And that is nowhere more clear than in the signs that line our roads. Let me share.

First, the depressingly inaccurate.

We have witnessed a Mesa battle this week over signs that contain inaccurate information—but it will apparently take a court to have them removed. The recall election of Russell Pearce already occupied too much of the time of newsfolk. Now, we are confronted with signs that operate simply through misdirection.

Here’s the story.

And here is the sign making all the hubbub. (Oddly enough, the Arizona Republic didn’t include the photo with its news story. I had to head over to the Phoenix New Times, that visual bunch, to find it. You can read the NT story here.)

To counterbalance the tawdry signs of politics we see all around us, I direct you northward. There, drivers came across a (we hope) playful warning—about an escaped panda bear.

The story, not nearly as good as the photo below, is here.

Enjoy.

Ariz. Senate President Russell Pearce

Mistakes are made in the heat of battle. And that is never more true than in lawsuits regarding pending elections (see Bush v. Gore).

That may be the most generous analysis we can make in the latest turn in the battle over a recall election for State Senate President Russell Pearce.

You may recall (get it?) that sufficient petition signatures were gathered to force a recall election of the engineer of the immigration law dubbed SB1070. But a lawsuit was filed immediately by Pearce backers to disallow the signatures, the petitions and the entire election.

Last week, an Arizona court in Maricopa County ruled against the suit, which would allow the recall to proceed. An appeal was expected.

What wasn’t expected was that the Pearce supporters filed the appeal directly to the Arizona Supreme Court. On Tuesday, the Court—ever so kindly—pointed out that the appeal came to the wrong bench.

As Justice Scott Bales wrote:

“The Court has received Appellant’s Rule 8.1 Statement in Expedited Election Matter, filed August 15, 2011. Because pursuant to Rule 8.1(h), Arizona Rules of Civil Appellate Procedure (ARCAP), ‘[e]xpedited election appeals involving recalls … shall be filed in the Court of Appeals’ rather than this Court, IT IS ORDERED transferring this matter to the Arizona Court of Appeals, Division One.”

Every lawyer may make an error, Justice Bales seemed to acknowledge. And so he concluded, “IT IS FURTHER ORDERED that Appellant not be charged a second initial filing fee.”

Other coverage of the matter made the event seem like a technicality. As FOX10 News reported:

“The Arizona Supreme Court is sidestepping an appeal of a judge’s ruling to keep a scheduled recall election for state Sen. Russell Pearce on track, but it may be only a temporary move.”

Here is their complete story.

True, I suppose, that all court rules are “technicalities.” But those are technicalities that lawyers live with every day. It’s nice that the Court won’t levy a second fee on the plaintiff when the matter is inevitably filed in the proper court. But given the very public nature of this Court order, I suppose the lawyers involved have already paid enough.

Below you’ll find the two-page order from the Supreme Court.

It was reported last night that a recall drive has been launched against one of our U.S. Senators from Arizona.

Sen. Jon Kyl

No, not John McCain, who has been much in the news lately. (I know you were guessing him.) This barb is directed at our other Jo(h)n—Jon Kyl.

As the story says, some are angry at a number of his positions:

“Kyl’s recent opposition of providing health care to the 9/11 first responders and emergency workers was the final straw, said Leonard Clark, chairman of ‘Kyl Refuses Health Care to 911 Emergency Responders!’”

Props to the protestor for an overly detailed organization name (and for the use of an exclamation mark, which always rankles).

Here in Arizona, citizen–agitators are pretty run-of-the-mill. In fact, the tradition of spirited advocacy reaches all the way back to Territorial days. We heard that discussed at the commemoration of the Arizona Constitution’s Centennial on December 2, which we wrote about here. (And a longer article will be in the February issue of Arizona Attorney Magazine.)

As the Republic news story suggests, the recall has a tough row to hoe and is likely Quixotic. But Kyl-protestors may take heart in the fact that the senator suffered a more stinging and pertinent defeat this week.

You may recall he drew a bright line in the sand on the START Treaty, which President Barack Obama wanted ratified before the end of the year. Give recent history, the Republicans likely bet that a diffident Obama would not cross the line. And they put Kyl out there front and center to wage the battle.

But Obama didn’t blink, showing that he can roast some chestnuts when he thinks it’s necessary. That left the GOP’s chosen warrior standing alone on the battlefield.

Sen. Kirsten E. Gillibrand, at right (PHOTO: Drew Angerer/The New York Times)

But the real winner in all this may not be Obama, and it almost certainly will not be those seeking Kyl’s recall (and we already know it won’t be Kyl himself).

But it may just be the junior senator from New York. Often derided and marginalized, she came into her own with strategic—and successful—moves on health coverage for 9/11 responders and on Don’t Ask Don’t Tell.

Read more about Kirsten E. Gillibrand here. She has shown quite a bit of savvy and spirited advocacy herself, and we’re likely to see even more in the coming year.