An attorney for the state said Friday he hopes to kill the challenge to the recall of Russell Pearce without ever having to fight over the validity of individual signatures.
Assistant Attorney General James Barton said it is true that the petitions seeking an election to oust the Senate president do not contain the same wording in the oath of circulators that are mentioned in the Arizona Constitution. Attorney Lisa Hauser, who is representing Pearce supporters, contends the failure to swear that the signatures are "genuine" means none of the 10,365 signatures state and county officials determined were valid can be counted.
But Barton said he believes that the language in the oath that circulators did sign is the functional equivalent of swearing that the signatures are genuine, even if it does not use that word.
And attorney Thomas Ryan, who represents recall organizers, pointed out that the petition forms his clients used came directly from the Secretary of State's Office.
Barton said he will file legal briefs this coming week detailing the state's position. He also said he will counter Hauser's arguments that the recall petition contains a statement which misled people about what they were signing, another reason she believes all the petitions are void.
Maricopa County Superior Court Judge Hugh Hegyi will consider the issue on Aug. 8.
Barton acknowledged that even if the judge sees things his way, that does not eliminate other claims Hauser is making that many of the 10,365 signatures county and state officials counted are not valid and should never have been included in the total.
But he said if Hegyi agrees with him and throws out Hauser's broad-based challenges to all the petitions, it does not matter if Hauser is correct. He pointed out that the number of signatures certified as valid is far more than the 7,756 necessary to force Pearce to defend his seat.
"In other words, you could have a situation where we could win on enough (legal) counts to have there still be some valid challenges" that remain to individual signatures, he said. "But those challenges aren't enough to get you under the 7,756 you need."
Ryan said he is confident that the judge will keep the recall alive.
He said the framers of the Arizona Constitution set up the procedure to ensure that voters could get rid of an elected official without having to wait until the end of that person's term. More to the point, Ryan noted there is no requirement to prove wrongdoing.
"For example, there's no requirement of high crimes and misdemeanors in the recall provisions of our constitution," he said, requirements that exist for impeachment and removal from office.
"If you don't think they're doing a good job, that's all that is required," Ryan continued. "You have to look to supporting the intent behind the language of the constitution, which is to allow citizens to address their concerns when they don't think somebody's doing their job."
Hegyi promised a ruling by Aug. 12.
But that is unlikely to be the last word. Whichever side loses is virtually certain to appeal to the Arizona Supreme Court.
That court will have to rule quickly, as county officials need time to print up the ballots for a special election on Nov. 8 for the west Mesa legislative district.
At this point there is only one official challenger to the Republican incumbent, independent Tommy Cattey. But Jerry Lewis, an executive with a charter school chain, has promised an announcement this coming week.