Huppenthal collecting signatures?

by David Safier
I'd only heard about this second hand, so I didn't post about it, but now the Arizona Guardian has an article saying,

Sen. John Huppenthal has been collecting signatures for a campaign for Superintendent of Public Instruction in violation of state election law.

I don't have one of those pricey subscriptions to the Guardian, so I can't give you details. But my second hand source told me about a friend seeing Huppenthal walking around with signature petitions. This creates a bit of a problem for him. He can form an exploratory committee while he's still in office, but he can't actively campaign for office until his current term is a year from expiration.

Anyone have more information on this?

Comments

[todd]

The Guardian confirmed with an election lawyer that collecting signatures is in fact actively campaigning for the position and he would be in violation of the resign to run law. He claims that merely collecting signatures is not running for office unless he actually turns them in. That argument is less than convincing. I wonder if this means any votes he has cast since starting this activity are actually binding since the moment he started doing this he was no longer in his current position in the lege. That would mean the budget was not in fact passed by the Senate?

[Thane Eichenauer]

Isn't there anybody who is responsible for enforcing this law?

As Le Templar with the East Valley Tribune says "Isn’t it about time we just declared “resign to run” to be a meaningless law?"

[AZ BlueMeanie]

"Isn't there anybody who is responsible for enforcing this law?"

Yes, there is.

A.R.S. 38-296 (resign to run statute) provides at section E that "A person violating any provision of this section is guilty of misfeasance in office and the office held by such person shall be declared vacant."

It is also a violation of the Arizona Constitution, Article 22, Section 18.

Under Arizona Revised Statutes Secs. 12-2041 and 12-2042, the Arizona Attorney General and County Attorney may bring a quo warranto action against an elected official who runs for office in violation of Article 22, Sec. 18 to force him to resign from the state position and to declare that position to be vacant. See, Conrad Joyner v. Rose Mofford and Robert Corbin, 706 F.2d 1523 (1983).

Here are the applicable statutes:

12-2041. Action by attorney general; venue

A. An action may be brought in the supreme court by the attorney general in the name of the state upon his relation, upon his own information or upon the verified complaint of any person, in cases where the supreme court has jurisdiction, or otherwise in the superior court of the county which has jurisdiction, against any person who usurps, intrudes into or unlawfully holds or exercises any public office or any franchise within this state.

B. The attorney general shall bring the action when he has reason to believe that any such office or franchise is being usurped, intruded into or unlawfully held or exercised.

12-2042. Action by county attorney

An action may be brought in the superior court by the county attorney in the name of the state upon his own information or upon the verified complaint of any person, against any person who usurps, intrudes into or who unlawfully holds or exercises any public office or any franchise within his county. The county attorney shall bring the action when he has reason to believe that any such office or franchise is being usurped, intruded into or unlawfully held or exercised.

12-2043. Failure of attorney general or county attorney to bring action for claimant of office

A. If the attorney general or the county attorney refuses to bring an action as provided for in sections 12-2041 and 12-2042, upon information or at the request of any person claiming such office or franchise, the person may apply to the court for leave to bring the action in his own name and may so bring it if leave therefor is granted.

B. Notice of the application shall be given to the attorney general or the county attorney as the case may be.