Darin Mitchell files appeal

Hank Stephenson//September 18, 2012

Darin Mitchell files appeal

Hank Stephenson//September 18, 2012

Darin Mitchell files appeal over being booted from LD13 ballot
Darin Mitchell, the Republican candidate removed from the Legislative District 13 House ballot for not living in the district. (Photo by Ryan Cook/RJ Cook Photography)

Darin Mitchell, the legislative candidate who was removed from the November 6 ballot yesterday after a Maricopa County Superior Court judge ruled that he did not live in the district he planned to represent, has filed an appeal.

The motion, lodged with the state Court of Appeals this morning, said the defense hadn’t been served in the proper time period, and that the laws cited in the case does not apply to candidates for the Legislature.

Attorney Timothy LaSota, who filed the appeal on Mitchell’s behalf, said he is asking the Court of Appeals to grant a stay in the case and allow Mitchell to remain on the ballot for the state House of Representatives in Legislative District 13, which spans an area from Yuma to the West Valley, until the court has ruled on an appeal.

“Unless this court acts immediately to stay the lower court’s ruling, Mitchell may remain off the ballot for good, and those who voted for him will be disenfranchised,” LaSota wrote in the appeal.

If a stay were granted, Mitchell could still be disqualified from taking office by the Court of Appeals, though his name would appear on the November 6 ballot. LaSota acknowledged it will be difficult to get a stay in the case with only one day before the ballots are printed.

“At that point the deprivation of Mitchell’s spot on the ballot may well be irreversible, even if he prevails in this appeal,” LaSota wrote in the appeal.

The appeal states that because the laws cited in the case did not apply to legislative candidates, the trial should have never been allowed to move forward.

LaSota also wrote that Rep. Russ Jones, who brought the complaint that led to Mitchell’s removal from the ballot, never served the defense with a verified amended complaint five days before trial began, as required by statute.

Jones’s attorney, Tom Ryan, said he isn’t worried about the appeal. He said the complaints about whether the law applies and whether the defense was properly served were already shot down by the Superior Court judge. Ryan said the standard to get the case reviewed would be to show the judge acted arbitrarily, which is a high hurdle. He also noted the judge found there was “clear and convincing evidence” that Mitchell lives out of the district, which would make a successful appeal unlikely.

And finally, if the defense only has until 5 p.m. today before the point becomes moot, and Mitchell is off the ballot.

“They’ve got so many oars to put in the water and pull, that the problem is they’re not going to be able to get it done before 5 o’clock today,” Ryan said.

The appeal says Jones could have acted sooner in filing the challenge, but instead he “waited until the ‘drop dead date’ for printing ballots to file his amended complaint.”

Military and overseas ballots must start printing by today at 5 p.m.  to get to voters on time, said Maricopa County Elections Director Karen Osborne.

Legislative District 13 Republican precinct committeemen are scheduled to meet at 2 p.m. today in Yuma to decide a replacement candidate for the ballot. Jones hopes to be their candidate, but if the district cannot agree on anyone before the 5 p.m. deadline, the ballots will be printed with no name for the district’s second seat in the state House. There are no Democrats running for the seat.

If ballots are printed before a replacement is chosen, a write-in candidate could file to run for the seat until five days before the election, according to the Secretary of State’s office.