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Supreme Court backs Payson mayor, settles unanswered recall question

By: - December 9, 2019 12:29 pm

Tom Morrissey speaking at the 2014 Western Conservative Conference in Phoenix. Photo by Gage Skidmore | Flickr/CC BY-SA 2.0

A recall election against the mayor of Payson has been called off after the Arizona Supreme Court issued a ruling that will likely change the requirements for all municipal recall elections moving forward.

The state’s highest court on Dec. 6 ruled that opponents of Payson Mayor Tom Morrissey didn’t collect enough signatures to force a recall election because they based the number of signatures they needed on the wrong election. The decision upheld a lower court ruling blocking the recall election, which had been scheduled for March 10.

State law and the Arizona Constitution dictate that, in order to trigger a recall election, organizers must collect signatures equivalent to at least 25 percent of the total votes cast for that office in the “last preceding general election.” 

But while that’s a simple enough calculation for statewide and countywide offices, which are required by law to have a primary and general election, things get trickier when it comes to municipal officers.

Nearly every city and town in Arizona uses a nonpartisan election system in which the top two vote-getters in the first, or primary, election advance to a runoff. But if a candidate wins an outright majority of votes in the first election, that candidate is declared the winner and there is no runoff, or general election. 

As a result, some municipal offices have gone many election cycles without that second runoff election.

Payson officials based the number of signatures needed for the Morrissey recall on the total votes cast for mayor in 2002, which was the last time there was a runoff for the office. Morrissey argued that the threshold should be based on the 2018 primary election, which is when Morrissey actually won the mayoral race. Using the 2018 election would raise the signature requirement from 770 to 1,225. 

Unite Payson, the campaign that sought to force the recall election, collected 821 valid signatures.

Attorney Timothy La Sota, who represents Morrissey, said the Supreme Court made the right decision, and that, based on the wording of the law, an election that occurred last year is clearly more appropriate than one from 2002.

“The (Arizona) constitution obviously wasn’t drafted with modern day, municipal, nonpartisan elections in mind, where many times the candidate wins outright in the first election,” La Sota said. “I think under that circumstance, you have to ask, what is the better fit?”

The ambiguity in the law has led some cities to different conclusions than the one reached by Payson.

For example, in a recent recall attempt against Phoenix City Councilman Michael Nowakowski, the city set the signature requirement at 1,337, which was based on the total votes cast in his 2015 re-election, when he ran unopposed. Had the city used the vote total from Nowakowski’s last general election in 2007, when he won his first term, the number would have been 2,329.

The recall campaign collected enough signatures to put Nowakowski on a recall ballot, but a judge cancelled it, ruling that the Urban Phoenix Project PAC didn’t comply with several technical requirements

The Supreme Court issued only a brief, three-paragraph order in the case, but the justices will issue a full written opinion at a future date. A court spokesman said the opinion will be published, meaning it will establish a precedent affecting other municipal recall elections.

The League of Arizona Cities and Towns took no position on which election should be the proper benchmark for recall campaigns. But the group, which represents municipal interests at the state Capitol, was pleased to see the question resolved.

“We welcome the clarity from the court for our cities and towns and look forward to reading the court’s written opinion when it is issued,” said Christina Estes-Werther, the league’s general counsel.

Critics of Morrissey, who served as chairman of the Arizona Republican Party from 2011-12, launched their recall effort against him following the ouster of Payson’s town manager. 

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Jeremy Duda
Jeremy Duda

Associate Editor Jeremy Duda is a Phoenix native and began his career in journalism in 2003 after graduating from the University of Arizona. 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.”