The recall against Senate President Russell Pearce will remain a three-way race, at least for the time being.
Maricopa County Superior Court Judge Edward Burke on Monday rejected a bid by Pearce foes to remove Olivia Cortes from the ballot. He said there was no evidence that the 59-year-old resident of Legislative Listrict 18 was insincere about her desire to replace Pearce in the state Senate.
Burke did agree with the contention of challengers that Cortes had been recruited to enter the race by Pearce supporters in a bid to siphon off anti-Pearce votes — votes that otherwise would go to Jerry Lewis, the other challenger in the race.
In fact, Burke said that without the help of Greg Western, chairman of the East Valley Tea Party, “she would have had no chance of qualifying as a candidate in the recall election or organizing and running any kind of a political campaign.” Cortes testified that Western is her primary — and sole — campaign adviser.
But the judge said all of that is legally irrelevant. He said that, generally speaking, courts should not be the final arbiter of why people are running for office, and whether their motives rise to the level of fraud.
“The court assumes that candidates have run for office for less than the noble motive of serving the public,” Burke wrote. He said that can include everything from getting a better-paying job or pension benefits to boredom, “or no reason at all.”
“Divining candidates’ motives and action on them is more properly the role of the voters,” the judge continued. He said the remedy for those who contend she is a “sham” candidate designed solely to help Pearce “is through the ballot box and not the courts.”
Monday’s ruling is not the last word on the race.
Attorney Tom Ryan, representing those who want to remove Cortes from the ballot, said he is weighing whether to ask the Court of Appeals to review the ruling.
But time is not on his side.
In his ruling, Burke pointed out that 102 ballots to residents of the east Mesa legislative district already had been mailed out. Two of those ballots already have been voted and returned.
Burke rejected Ryan’s suggestion that he order ballots without Cortes’ name be reprinted and mailed out.
“The court cannot take the chance that any voter will be disenfranchised by its ruling,” the judge wrote, even assuming he had found some evidence of fraud.
Ryan said though this is not the end. He pointed out that while Burke refused to remove Cortes from the ballot, the judge rejected her effort to have the lawsuit against her candidacy dismissed entirely.
He told Capitol Media Services he continues to gather evidence in a bid to show that Pearce — or at least those involved in his campaign — put Cortes on the ballot intentionally to divert votes. That leaves the door open for Ryan to use any newly acquired evidence to go back to court after the election — assuming either Pearce or Cortes wins — to overturn the results on the grounds of voter fraud.
In his ruling, Burke said there was evidence of fraud of sorts, though not by Cortes.
“During the (Friday) all-day hearing, no one impugned Cortes’ honesty of integrity,” he wrote. “The court finds that she is genuinely opposed to what she believe is Pearce’s harsh legislative treatment of and comments about illegal Hispanic immigrants.”
He acknowledged that Cortes has not waged what would be considered a typical race, having had no press conferences, turning away volunteers and agreeing to only a single TV interview. But he said that could be because she “places a very high value on her privacy” and that she “is far from a protypical candidate for the Arizona Senate.”
But the judge had little good to say about Western.
“The evidence was crystal clear that without Western’s assistance, and that of others who have circulated nominating petitions and erected signs supporting Cortes, her name would not be on the recall election ballot,” Burke wrote. “It is also clear that those who have assisted Cortes have done so to divert votes from Lewis for Pearce’s bnenefit.”
He also questioned Westerns credibility.
“His testimony that he has no idea who designed, posted and paid for campaign signs supported Cortes or who paid the professional petition circulators is too improbable to be believed,” the judge said.
Western told Capitol Media Services he is telling the truth.
“I honestly have no idea who paid for stuff,” he said. Western also said he will be asking those who have been putting up those signs to stop.
Secretary of State Ken Bennett launched a probe into those signs last week after both Cortes and Western testified that the signs do not belong to the campaign.
Under Arizona law, any signs not paid for and erected by a candidate need to include a statement of who has paid for them. The signs contain no such disclosure.
Matt Roberts, Bennett’s press aide, said Monday that inquiry is continuing.