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Lawsuit to kick Kirkpatrick off ballot fails

Voters wait in line at dawn to cast their ballot in Arizona's presidential primary election, Tuesday, March 22, 2016, in Phoenix. (AP Photo/Matt York)

(AP Photo/Matt York)

Ann Kirkpatrick is a resident of Tucson and entitled to run for the open congressional seat being vacated by Martha McSally, a judge ruled this afternoon.

Maricopa County Superior Court Judge Joshua Rogers acknowledged that Kirkpatrick still owns a home in Flagstaff. And he said she does spend time at a Phoenix condo which she jointly owns with husband Roger Curley.

But Rogers said based on the evidence he saw and Kirkpatrick’s statements in court on Tuesday he finds that from the time she announced her candidacy in July 2017 and began to collect petition signatures for the Democratic nomination , she “was physically present in Tucson and had an intent to remain in Tucson.”

What that means is that a legal challenge paid for by Matt Heinz, who also wants the CD 2 seat, fails.

Heinz was not challenging her right to run, at least not directly. Nothing in the U.S. Constitution requires that members of Congress live in the district they represent.

Instead, the lawyers seeking to have her name removed from the ballot said she lied on her nominating papers and petitions when she listed addresses in Tucson.

Attorney David Weatherwax argued that she really was living with her husband in Phoenix. And the Tucson addresses on the legal paperwork, he said, violates state law and makes her ineligible to run.

But Rogers, in his 10-page ruling, said that, despite any time she spends elsewhere, there was sufficient evidence of her presence in Tucson, ranging from where she buys her gas to having been a member of the Pima County Public Library for “a couple of months.”

Anyway, the judge said, where Kirkpatrick spends her time is only one indication of where she lives.

“Residence is determined by both physical presence and intention,” Rogers wrote.

An appeal is anticipated.


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