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Bennett agrees: Brewer can’t seek a third term

Arizona Secretary of State Ken Bennett at the certification of the 2012 election canvass. (Photo by Ryan Cook/RJ Cook Photography)

Arizona Secretary of State Ken Bennett at the certification of the 2012 election canvass. (Photo by Ryan Cook/RJ Cook Photography)

The state’s highest election official concluded that Gov. Jan Brewer can’t seek another term, an idea she has floated a few times.

Agreeing with many election law experts, Secretary of State Ken Bennett said Brewer, like him, would have served two full terms by 2014 and is therefore barred from seeking reelection.

Bennett is himself exploring a gubernatorial run.

“She and I are term-limited in 2014,” Bennett told reporters on Monday,  when he and other state officials canvassed and certified the results of last month’s elections.

Joe Kanefield, who served as Brewer’s elections director while she was the secretary of state and as her general counsel at the Governor’s Office, earlier argued he doesn’t think voters’ intended, in passing term limits in 1992, to limit governors to one elected term in office.  Nor did they intend to penalize secretaries of state who inherited the office through succession, just as Brewer did in 2009, he said.

“I buy a lot of Joe Kanefield’s arguments, but not this one,” Bennett said. “I haven’t read his detailed evaluation, but we read the Constitution on its face that any portion of a term counts as a full term, and both of us will have their fully served terms by the time the 2014 election occurs.”

Brewer has 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.

Attorney Paul Eckstein, who frequently represents the Arizona Democratic Party in election cases, has said there’s no chance Brewer is eligible for a third term.

Lee Miller, an elections attorney who serves as counsel for the Arizona Republican Party, has 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.

“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,” he said.

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.”

But Kanefield said in November that 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.

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