Counties: retroactivity clause won’t put party activists back on the ballot

By: - March 16, 2022 12:10 pm

Illustration by Niyazz | iStock / Getty Images Plus

The retroactivity clause that GOP lawmakers are pinning their hopes on to restore elections for party activists this year won’t actually put those races back on the ballot, according to the Arizona Association of Counties. 

Republican lawmakers in the House and Senate both approved bills this week to repeal a provision from recent legislation that eliminated elections for precinct committeemen, who are the elected, voting members of political parties’ legislative district-level organizations, for 2022. 

After facing an uproar from party activists, Republican lawmakers are trying to reverse that decision. But in order to enact the new law in time to actually put precinct committeemen on the primary election ballot in August, they need Democratic votes. And the Democrats aren’t helping.

To get around that lack of Democratic support, the Senate and House versions of the bill to restore elections for PCs, as the positions are often known, have retroactivity clauses. 

House Majority Leader Ben Toma, R-Peoria, said the legislature’s intent is clear at this point, and it’s well known that, despite the language of House Bill 2839, lawmakers did not intend to eliminate elections for precinct committeemen. Passing a new bill with a retroactivity clause will emphasize that intent, even if the effective date is still a ways off. 

“The counties know that. The PCs know that. Everybody knows that at this point,” Toma said. “Now, what (the counties) do from then on is their business. And I hope they do the right thing. But as far as I’m concerned, again, the intent is quite clear.”

But in this case, a retroactivity clause won’t cut it, according to Jennifer Marson, executive director of the Arizona Association of Counties. The problem is that the legislation as it stands now won’t permit counties to take the steps they’ll need to take to actually put precinct committeeman races on the ballot. 

HB2839, which both chambers of the legislature passed unanimously, temporarily converted precinct committeemen into appointed positions for the two-year term beginning in 2022 as a way to deal with complications from redistricting. Instead of submitting their nominating petitions to county election officials, as they normally would, precinct committeemen candidates submit them instead to their county political parties, who make the call on who fills those slots. 

GOP lawmakers can pass a bill to restore those elections. But without an emergency clause, the new law won’t go into effect until 90 days after the legislative session ends. The deadline for candidates to submit their nominating petitions is April 4, and the deadline for precinct committeeman candidates to even file as write-ins is April 18. 

The deadline to file as a write-in candidate for most offices is June 23. But for offices with elections that can be legally canceled if there aren’t more candidates than positions, such as school boards and precinct committeemen, state law sets the deadline earlier. 

Neither the House or Senate bills passed with emergency clauses. Only one Democrat in the Senate and three in the House voted for the plan. Republicans need four Democrats in the Senate and nine in the House to join them. That means the counties can’t legally accept nominating petitions for precinct committeeman candidates to appear on the ballot, Marson said. Until a new law goes into effect, the counties are still bound by the provisions of HB2839. 

“Retroactivity without emergency is not going to help this situation,” Marson said. 

Those deadlines exist for a reason. Counties have tight schedules for when ballots must be printed and mailed. Megan Gilbertson, a spokeswoman for the Maricopa County Elections Department, said it’s very difficult to add new names or offices to the ballot after the April 4 filing deadline. Maricopa County sends its ballots to the printer on May 19 to ensure that overseas and military ballots go out in the mail by June 18, as federal law requires. Early ballots for the primary election go in the mail on July 6.

Gov. Doug Ducey is widely expected to call a special session soon that will include the precinct committeeman issue. That would allow the repeal to officially go into effect 90 days after the special session ends, not after the regular session concludes, ensuring that the new law becomes effective before the Aug. 2 primary election.

However, that still won’t get the new law in effect before the filing deadlines pass. 

“From our perspective, the reality is they need an emergency clause. I don’t care if you do it in a regular session or a special session, you have to have an emergency clause,” Marson said. 

Sen. Michelle Ugenti-Rita, R-Scottsdale, has advocated for the legislature to restore PC elections in a special session as a workaround for the lack of Democratic votes. However, Ugenti-Rita said legislative attorneys have told her a retroactivity clause won’t work, though she said unnamed others have given her differing opinions. 

“I’m happy to support it again in special,” Ugenti-Rita told the Arizona Mirror. “I understand that it may not be enough. It may not move up the effective date soon enough to accommodate the PC elections in the primary timeframe.”

Under HB2839, PCs who are appointed by their county parties in 2022 are deemed elected under the law. That’s important because elected PCs have powers that appointed ones don’t, such as selecting finalists for legislative vacancies

But to many PCs, especially on the Republican side, it is of utmost importance that PCs go to the ballot so voters can select them. 

Despite the furor over the cancellation of PC elections in 2022, the overwhelming majority of precinct committeemen never actually appear on a ballot. PC elections only go to the ballot if there are more candidates than positions — that includes write-in candidates — which is a relative rarity.

For example, out of 748 precincts in Maricopa County, only 18 had contested Republican PC races and only three had contested Democratic PC races that appeared on the ballot, according to Gilbertson. In 2018, there were nine contested Republican races and just one on the Democratic side. 

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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.”