Winning GOP candidate ran in Republican district while living in Democratic district
Published: September 4, 2012 at 6:20 pm
Political newcomer Darin Mitchell defeated an incumbent legislator in the Aug. 28 primary election, but it appears he never should have been on the ballot because he lives in a home outside Legislative District 13.
Mitchell claimed in a sworn affidavit that he lives in a 3,600-square-foot home on a golf course in Litchfield Park. In reality, the home is vacant, with mattresses covering the front windows, a construction dumpster in the driveway and construction permits taped to the window. Neighbors say the house has been empty for at least a year, and a contractor working on the home confirmed nobody lives there.
In a telephone interview, Mitchell acknowledged he lives with his girlfriend in a home outside the district, but said he has also spent some time at the house on Acacia. He said he plans to move into that home after renovation is finished and the election is over.
Rep. Russ Jones, a two-term lawmaker from Yuma, lost his re-election campaign in the Republican primary in Legislative District 13 to Mitchell, a home inspector from Avondale and first-time candidate, by 1,277 votes or about 5 percent of the votes cast. The district stretches from Yuma to the western edges of Phoenix.
Jones is calling foul, saying that, because Mitchell doesn’t live in the district, he should be disqualified. Though Jones yet to go to court, he said he is weighing his options. Mitchell is running unopposed in the November general election.
Jones said he has contacted veteran elections attorney Lisa Hauser to look into the matter. She has handled several cases like this over the years, mostly dealing with Justice of the Peace candidates, she said.
“Not living in the district is a big deal,” she told Arizona Capitol Times. “That’s a requirement that really goes to your qualification for office, and therefore there are several places (in the process) that that can be brought up.”
(Click on the map below to see information about Mitchell’s homes and about the district each is in.)
The home on Acacia Circle
On his nomination forms, Mitchell listed his address as 1150 E. Acacia Circle in Litchfield Park.
But he doesn’t live at the house on Acacia Circle. He lives with his girlfriend in a neighboring legislative district, in the same house that he has called home since 2007. The home is in a district that consists mostly of Democrats, unlike District 13, which is predominantly Republican.
A neighbor was the first to report that Mitchell wasn’t telling the truth. Mary Wilkening was flipping through her Clean Elections guide when she noticed Mitchell had listed his address as the house across the street from hers. She knew the home was empty and contacted Jones, figuring Mitchell’s opponent would want to know.
“I had never heard of Darin Mitchell, and I happened to see that he supposedly lives across the street,” she told Arizona Capitol Times. “And that’s that house that nobody lives in – so how could this be? That’s what alerted me to it. I was very surprised to see that address.”
She started doing a little gum-shoeing in the neighborhood and discovered the couple who owns the home are friends with Mitchell.
“It’s possible that Darin Mitchell has been working on this house – he is a friend of the (owners),” she said. “But he certainly doesn’t own it, and he has not been living there.”
Two other neighbors said the house has been empty for at least a year, and a contractor working on the home confirmed nobody lives there.
When he filed his nominating petitions to run for the office, Mitchell listed his address as 13509 W. Earll Drive in Avondale, outside the new district’s boundaries. He has also used that address for the license for his business, Landmark Home Inspections, for a loan and his voter registration since 2007.
On his Affidavit of Qualifications, which was filed with the secretary of state on May 30, Mitchell listed his address as the house on Acacia Circle, with the Earll Drive address listed as his post office address. The next day, he changed it so that both his mailing address and post office address were on Acacia Circle.
The signed and notarized affidavit says, “I do solemnly swear (or affirm) that at the time of filing, I am a resident of the county, district or precinct which I propose to represent.”
He changed his voter registration to the vacant house on Acacia Circle a week later.
The two houses may only be two miles apart, but the difference in the political makeup of the two districts is huge. The house on Acacia Circle is in a heavily Republican district – so Republican that Mitchell faces no Democratic opposition in the general election. The house on Earll Drive is in Legislative District 19, which is heavily Democratic and was designed to ensure Hispanic voters can choose one of their own to represent them.
The House on Earll Drive
Arizona Capitol Times stopped by the house on Earll Drive. At the foot of the front door was a stack of campaign fliers advertising “Your conservative team,” Mitchell and his running mate, Republican Rep. Steve Montenegro. The fliers were in a Ziploc bag with the name Theresa K written on it.
Theresa Koontz and her husband, Jeff, own the house on Acacia Circle. They are supporters of Mitchell’s and each gave $150 to Mitchell’s campaign – the maximum they could give to a publicly funded candidate like Mitchell – according to campaign finance reports. Theresa Koontz is also active in the Arrowhead Republican Women’s club.
When a reporter rang the doorbell at his Earll house, dogs started to bark, and through the glass block window a human figure could be seen running up the stairs. Despite knocking several more times, nobody answered the door.
When contacted by phone, Mitchell said he lives on Acacia Circle. When confronted with the fact that the house is vacant, he backpedaled, admitting that he has been living at his girlfriend’s house on Earll Drive and saying he’s going to live on Acacia soon.
“The point is, I do live with my girlfriend at Earll,” he said. “I did move here in the house that is currently under construction, and I don’t keep track of when I do, or when I do not, stay here.”
He said he has stayed overnight at the Acacia Circle house before, but couldn’t say when. He couldn’t estimate how many nights per week he sleeps there, and didn’t know what month he moved in.
“It was before it was required by statutory requirements,” he said, although he couldn’t say when that would be.
When asked if he had a lease agreement on the house, he said he didn’t want to answer any more questions. He then hung up the phone.
A subsequent attempt to contact him led only to his voicemail.
What the law says
Despite his claim that the Acacia Circle house is his permanent address, Arizona law suggests otherwise.
State law defines a resident as having an “actual physical presence in the (district), combined with intent to remain.”
A voter’s residence is defined as “that place in which his habitation is fixed and to which (the voter) has the intention of returning when absent.”
The law goes on to state that the intention of acquiring a new home in the district doesn’t pass legal muster, just as acquiring a new residence in the district but not leaving your old home out of the district doesn’t.
Basically, it has to be your fixed habitation where you intend to return after an absence. It’s a kind of home-is-where-you-hang-your-hat rule.
Several attorneys who specialize in election law said they have never seen a situation quite like the one with Mitchell.
Attorney Craig Morgan of Stinson Morrison Hecker called Mitchell’s situation a “fascinating quandary.” He said that, if Mitchell hasn’t been living in the house – even if he plans to live there after the election – he’s not in compliance with the law and could face a legal challenge.
But challenging Mitchell’s place on the ballot will be difficult, Morgan noted.
“You’ve got to get the judge to overturn the will of the people, who obviously wanted him,” he said.
Perkins Coie attorney Dan Barr said he doesn’t believe there is a specific provision for this situation in state law.
Still, he thinks a challenge could be brought against Mitchell.
“It strikes me that, if somebody doesn’t meet the minimum qualifications set out by statute or the Constitution, that someone could bring a mandamus action to bounce this person from the ballot,” he said.
If a challenge were allowed, and Mitchell were removed from the ballot, he speculated that the procedures for filling ballot vacancies already in statute would kick in – and the decision for a replacement would be left to the district’s Republican precinct committeemen.
Hauser, the attorney contacted by Jones, said one possible road would be to challenge Mitchell’s qualifications. That could happen as soon as the Secretary of State certifies the official primary election canvass results, but a challenge can also be brought even after Mitchell wins the general election.
Hauser recently handled a case where someone was removed from a Pinal County Irrigation District seat for not living in the district – even after the person won the election.
She said she has seen such cases go both ways, but the crux of the debate is always whether the candidate has both an actual physical presence in the district and the intent to remain there.
Hauser said she hasn’t been officially hired to look into the matter yet, and didn’t want to speculate too much on the outcome. But with the facts she has heard, she said it looks like Jones has a case.
“Based on how these things tend to go, it’s not starting out as the kind of story that turns out well for a candidate – let’s put it that way,” she said. “I think sometimes (candidates) figure, if elected, they’ll move into the district, and that doesn’t tend to turn out very well.”
Another route would be for officials to bring charges against him for filing false applications, which has happened in other cases.
Jones said the voters deserve to have someone who actually lives in the district representing them.
He said he may bring a legal challenge against Mitchell.
In addition to possibly challenging Mitchell’s qualifications to hold the office, Jones is looking into whether Mitchell perjured himself by putting a false address on his signed, notarized paperwork to run for office. And, finally, Jones is looking into whether Jeff and Theresa Koontz worked with Mitchell to, as he puts it, “conspire to defraud the electorate.”
“It’s a scam,” he said. “And now it’s a matter of what the public thinks of it, and what the laws of Arizona think of it.”
Jim Small contributed to this story.