The growing field of candidates eying the Ninth Floor in 2014 almost certainly can’t include Gov. Jan Brewer, according to election attorneys and other experts.Brewer has repeatedly floated the idea of seeking re-election, saying the Arizona Constitution is unclear about whether the partial term she served when former Gov. Janet Napolitano resigned in 2009 bars her from running again.
The Constitution limits executive officers, including the governor, to two consecutive four-year terms, including “any part of a term served.” The governor, who was elected to full term in 2010, said she may challenge that provision in court.
But election and constitutional experts say there’s likely no chance she would prevail. And privately, many denizens of the Capitol say they don’t expect Brewer to actually try to run again, with some viewing the idea as a way to avoid being viewed as a lame-duck governor.
Assistant Secretary of State Jim Drake, who served as House rules attorney before joining the Secretary of State’s Office, commented in an email on the term-limits provision in the Arizona Constitution: “In my previous role, I read every single piece of legislation for 10 years and rendered opinions on constitutionality. I can’t find even a scintilla of ambiguity in Article V, §1.”
Attorney Paul Eckstein, who frequently represents the Arizona Democratic Party in election cases, said there’s no chance Brewer is eligible for a third term.
“It’s absolutely ludicrous that she would entertain it and that anybody would seriously argue,” said Eckstein, of the firm Perkins Coie. “This maybe could be achieved on Mars. And I’m not familiar with the Martian legal system. I like to keep an open mind on these things.
I appreciate creative lawyering. But in my mind, it’s beyond the pale.”
Arizona governors served two-year terms with no limits until 1968, when voters approved a ballot measure extending the terms to four years. In 1992, they passed Proposition 107, which established term limits for lawmakers and executive officers.
Attorney Joe Kanefield, who served as Brewer’s elections director at the Secretary of State’s Office and as her general counsel at the Governor’s Office, said the Constitution is unclear. Kanefield said he doesn’t think the voters’ intent in 1992 was to limit governors to one elected term in office or penalize secretaries of state who inherited the office through succession, as Brewer did.
He said the term-limits provision conflicts with the constitutional provision on succession, which says a successor to the Governor’s Office “shall become governor in fact.” In such a situation, he said, the courts would take all applicable provisions of the Constitution into account.
“I think they were talking about an elected term,” said Kanefield, of the firm Ballard Spahr. “It’s not clear if it means a term that you’re elected to serve, or does it include a term that you were appointed to serve, or does it include a term that you succeeded? I think the logical reading of ‘term’ is an elected term, that you shall not serve more than two elected terms in office.”
Kanefield said he believes voters intended the phrase “any part of a term served” to prevent what he called “gamesmanship.” Without that phrase, he said, governors would have been able to evade the two-term limit by resigning before the end of their second term. And under the interpretation that would prevent Brewer from running again, a governor who lost to the next person in the line of succession in the general election could, out of spite, resign right after the election to prevent her successor from running for a second full term.
“I don’t think that the drafters of the term-limits law were thinking about a situation where the secretary of state inherits the office of governor by succession,” he said.
Lee Miller, an elections attorney who serves as counsel for the Arizona Republican Party, said the courts would look at how ‘term’ is defined elsewhere in the Constitution and in statute, and determine if there is a consensus definition. In that context, he said, Brewer served part of a term when she took over for Napolitano.
“Go look at the vacancy-in-office statute, where when a vacancy exists and a successor takes over. How long does that successor serve before they’re required to stand for their own election?” Miller said. “You can always find lawyers who are willing to engage in debate. But I think in front of a judge it would be a mighty challenging question to persuade a judge that Governor Brewer could legally serve beyond January 2015.”
Paul Bender, an Arizona State University professor and an expert on the Arizona Constitution, said the drafters of the 1992 initiative could have adopted the federal model, which allows successors to the presidency to run for re-election a second time if they serve less than half of their predecessor’s term. But the fact that they didn’t is telling, Bender said.
“It seems to me, one of the clear constitutional questions one could find is that she really can’t run again,” Bender said. “It doesn’t seem to me it’s plausible that she can run.”
Elections attorney Tom Ryan said the language of the term-limits provision is crystal clear.
“It may seem unfair. It may seem harsh. But it is what the people of Arizona passed, and when we passed it, it included partial terms,” Ryan said. “The plain language is very clear. It’s very simple to understand.”
The 1992 voter publicity pamphlet, which is published by the Secretary of State’s Office, makes no mention of the succession issue. The Legislative Council’s analysis of Prop. 107, which is not legally binding, stated that executive department officers would serve “a maximum of two consecutive terms, which is eight years.”
But Arizona had plenty of experience with gubernatorial succession at the time. Only four years earlier, former Secretary of State Rose Mofford succeeded impeached Gov. Evan Mecham. And Mecham’s predecessor, Bruce Babbitt, actually served more than two terms because he inherited the office from Wesley Bolin before winning re-election twice.
Ryan said Kanefield’s gamesmanship argument was a stretch, and questioned whether such an incident has ever occurred in the United States.
“Nobody ever did that before. But the one thing that the state of Arizona had seen was the succession issue. And they’ve seen that over and over again,” Ryan said.
Election law attorney Kory Langhofer said Kanefield has at least an argument to make. Langhofer, who recently served as associate general counsel for Mitt Romney’s presidential campaign, said Kanefield’s best bet would be to base his argument on other sections of the Arizona Constitution that refer to a term as being an elected term.
But while Langhofer said it would be possible to succeed with that argument, he said it would be highly unlikely.
“My best guess is that the argument would not be accepted,” Langhofer said.
Jaime Molera, an aide to former Gov. Jane Hull, who served a partial term when he succeeded former Gov. Fife Symington in 1997, said there was some talk of Hull exploring the possibility of seeking another term. But Molera said Hull never seriously considered the idea, and he doesn’t think she believed she would be able to run again.
“I personally don’t think it’s viable under the Constitution,” Molera said.
If Brewer were to seek a third term, a court battle would be inevitable.
Kanefield said the Secretary of State’s Office could theoretically reject Brewer’s petitions if she filed to run in 2014. But the likelier option, he said, would be for the office to accept her candidacy filing and let another party challenge it in court during the statutory 10-day challenge period. Secretary of State Ken Bennett chose to reject the signatures or challenge Brewer’s candidacy himself, but it would politically tricky, considering his likely candidacy for the office.
Brewer could also preempt the issue by asking the courts for a declaratory judgment, Eckstein said.
“There’s a part of me that says, go for it. Try it out. Because I think she will be slapped down and slapped down hard,” Eckstein said.
Brewer said supporters have asked her to consider seeking another term. But she hasn’t decided yet whether she’ll do so.
“Several people have talked to me about that and it’s very interesting the way that certain people interpret the law or the Constitution,”
Brewer said this week. “I love my job and that I have made major reforms in the state of Arizona. Am I burnt out? No. I love what I’m doing. I think I could continue by making Arizona a better state in which to live. It just is something that’s in my blood, I guess.”
Brewer spokesman Matthew Benson said the governor isn’t considering the issue to ward off the notion that she’s a lame duck.
“The governor sets the agenda for this state and continues to do so. I don’t think she’s concerned about looking like a lame duck. She continues to do big things as governor and set the agenda for the state,” Benson said.