Lawsuit over Payson recall could settle quirk in election law

By: - November 4, 2019 3:33 pm

An Arizona voter carries her ballot to a polling place to vote in the 2018 primary election in Phoenix. Photo by Ralph Freso | Getty Images

A legal battle over an attempt to remove the mayor of Payson from office may settle an unanswered question about the requirements for forcing a recall election against a municipal official.

State law and the Arizona Constitution dictate that in order to call a recall election against an elected official, organizers must collect signatures equivalent to 25 percent of the total number of votes for that office in the “last preceding general election” for that office. For state and county officials, that number is easy to calculate.

But things can get tricky when it comes to city and town officials, which don’t always have general elections. In nearly every city and town in Arizona, all candidates for a municipal office appear on a nonpartisan ballot, and the top two vote-getters move on to a runoff election. If one candidate gets a majority of all votes, that person is declared the winner and no runoff election is held.

That leaves an open question — how does a city calculate the number of signatures needed for a recall election if it’s been years since the last general election for an office?

An attempted recall campaign against Payson Mayor Tom Morrissey may finally provide an answer.

Opponents of Morrissey, a former Arizona Republican Party chairman, launched a recall effort following the contentious ousting of the town  manager. When the campaign asked the town clerk how many signatures it needed, she told them 770. That figure was based on the election of 2002, which was the last time Payson had a runoff election for a mayoral race.

Unite Payson, the recall campaign organization, collected 970 signatures, 821 of which were deemed valid, according to the Payson Roundup. But Morrissey argued that the 2002 election was the wrong benchmark. In a lawsuit he filed to block the recall, his attorneys said the threshold should be 1,225, a figure based on the 2018 primary election, which is when he was actually elected mayor.

Maricopa County Superior Court Judge Randall Warner agreed, and ruled to block the March 10 recall on Friday. Though the 2002 election was technically the last general election for mayor, the 2018 primary was the most immediate preceding election. Warner wrote that term “preceding” suggests that the constitution’s framers meant an election that was held in proximity to the recall attempt.

“The August 2018 primary election is not a perfect fit with the term ‘last preceding general election,’” Warner wrote in his ruling. “But it is a better fit than the 2002 election. It is more consistent with the Constitution’s purpose of measuring the number of signatures needed to call a recall election by the present size of the electorate. And an election 17 years ago cannot reasonably be considered ‘preceding.’”

Unite Payson has appealed the ruling to both the Arizona Court of Appeals and the Arizona Supreme Court in the hopes of restoring the number based on the 2002 general election.

At a scheduling hearing on Monday, the appellate court decided to halt until the Supreme Court decides whether it will take the case, said attorney Eric Spencer, who represents Unite Payson. 

Spencer said he was unable to find any legal case in Arizona in which the issue has come up. He’s hoping the Arizona Supreme Court will provide some guidance.

“That’s the phrasing from the constitution,” Spencer said, referring to the use of the term “general election” in the state constitution. “So it’s sort of an issue of statewide importance in the sense that any other cities in the state would be facing the same difficulty in figuring out which election to use.”

Timothy La Sota, Morrissey’s attorney, said the 25-percent figure in the constitution and state statute is supposed to be based on a contemporaneous number. Payson’s population in 2002 was 14,047, according to the U.S. Census Bureau. Its population in 2017 was 15,520.

La Sota noted that some cities may never even have a general election.

“How can you measure 25 percent against something that may never happen?” La Sota said. 

The Payson town clerk consulted the League of Arizona Cities and Towns on the matter. Christina Estes-Werther, the league’s general counsel, said the league essentially advised Payson, as it does with all cities, to consult its attorneys as to which election it believes would be more appropriate. The league’s elections manual provides the same guidance. Estes-Werther said the league doesn’t provide legal advice.

The issue of which election to use has never been litigated, but the question comes up frequently. Recall elections, which are extremely rare at the state level, are common at the municipal level, especially among smaller towns. 

She said she gets three or four questions per year. Cities and towns in Arizona are pretty much split down the middle on which option they choose. For cities that haven’t held a general election in many years, Estes-Werther said the last general election usually has the lower signature threshold than the preceding primary election.

Neither the courts nor the legislature has ever settled the issue. The controversy in Payson could answer the question for good.

“We would like any clarity. That would be great,” Estes-Werther said. “We don’t really have a position. We would just like clarity for the clerks, because they’re the ones who get stuck in the middle.”

Cities in which a general election is required for municipal offices are a rarity in Arizona. In Scottsdale, if there are fewer than three candidates for an office, the election is moved up to the November general election date. Tucson is the only city in Arizona that holds partisan elections, and mandates a partisan primary election, with the winners advancing to a general election, just like state and federal offices. 

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Jeremy Duda
Jeremy Duda

Jeremy Duda is a Phoenix native and began his career in journalism in 2003 after graduating from the University of Arizona. Jeremy Duda previously served as the Mirror's associate Editor. Prior to joining the Arizona Mirror, he worked at the Arizona Capitol Times, where he spent eight years covering the Governor's Office and two years as editor of the Yellow Sheet Report. Before that, he wrote for the Hobbs News-Sun of Hobbs, NM, and the Daily Herald of Provo, Utah. Jeremy is also the author of the history book “If This Be Treason: the American Rogues and Rebels Who Walked the Line Between Dissent and Betrayal.”