BY LINDA BENTLEY | OCTOBER 5, 2011
Controversial Pearce challenger to remain on Recall Election ballot
‘… candidates have run for office for less than the noble motive of serving the public …’
PHOENIX – Maricopa County Superior Court Judge Edward O. Burke ruled Monday that District 18 candidate Olivia Cortes (r), challenging Sen. Russell Pearce in the Nov. 8 Recall Election will remain on the ballot.
Burke stated, “Two citizens have already voted. By the time new ballots could be printed and mailed to military and overseas voters, more may have voted. The court cannot take the chance that any voter will be disenfranchised by its ruling.
“A concomitant right of our citizens is to run for elective office without having their motives examined by the court absent a clear case of fraud.”
Plaintiff Mary Lou Boettcher filed an application for a temporary restraining order to prevent Cortes from appearing on the Nov. 8 Recall Election ballot, claiming Cortes was a sham candidate enlisted by Greg Western, a Pearce supporter and chair of the East Valley Tea Party, for the purpose of diluting the votes against Pearce and a third candidate Jerry Lewis, who announced he was running for the post the day after Cortes filed her statement of organization.
Court testimony revealed a few Pearce supporters carried nominating petitions for Cortes, while Suzanne Dreher, a paid petition circulator, testified she was hired by Petition Pros to circulate nominating petitions for Cortes and her supervisor Diane Burns told her to advise Pearce supporters that “signing Cortes petition would actually help Pearce get reelected by diverting or diluting the vote.”
A tape recording was played at the hearing, in which Dreher was heard telling at least one Pearce supporter to sign the petition because it would help Pearce get elected by dividing the vote.
Cortes, who claims to be a Republican, testified she is running because Pearce has been too harsh in his treatment of illegal immigrants.
Burke wrote, “During the hearing, no one impugned Cortes’ honesty or integrity. The court finds that she is genuinely opposed to what she believes is Pearce’s harsh legislative treatment of and comments about illegal Hispanic immigrants.”
He also noted Cortes, a 59-year old Motorola retiree, who has never run for public office and places a very high value on her privacy, “is far from a prototypical candidate for the Arizona Senate.”
Maricopa County Elections Director Karen Osborne testified that 70,000 ballots had been printed for the recall election at a cost of $67,022.
On Sept. 23, 2011 the county recorder mailed 102 absentee ballots to military personnel and persons who are out of the country, as required by law, and, as of the hearing date, two absentee ballots had been cast.
Although Boettcher filed this action at 5:04 p.m. on Sept. 23, Burke stated there was no indication in the court files as to when it was served on the defendants and assumed it was not served on Maricopa County until after the military and overseas ballots had been mailed.
However, Burke found Cortes was persuaded to run for office by Western, a Pearce supporter, and said the evidence was crystal clear without Western’s assistance and that of others who circulated nominating petitions and erected signs supporting Cortes, her name would not be on the ballot.
He said it was also clear those who assisted Cortes have done so to divert votes from Lewis for Pearce’s benefit.
Burke said the court needed to decide two questions: does the recruitment of a diversionary or sham candidate by Pearce supporters and/or the East Valley Tea Party constitute election fraud sufficient to cause the court to take some action and, if so, what action, as a practical matter, can the court order?
Although Burke found Cortes was recruited to run, at the behest of Pearce supporters, to divert votes from Lewis for Pearce’s benefit, he said, “Mediating against a finding of fraud is that at least the paid petition circulators were clear about their intent when asked how signing the petition would affect Pearce. The fact that nothing was hidden by these petition gatherers makes it difficult for the court to find fraud.”
Because Cortes testified she intends to campaign, has a website, gave one interview to the press on Sept. 27 and plans to appear at a candidates’ forum this week, Burke said, “Whether that is because of her desire to serve in the Arizona Senate or because plaintiff has alerted her, only she knows for sure and it is not this court’s job to decide this case by speculating on her motive.”
Burke said he assumes “candidates have run for office for less than the noble motive of serving the public, which could include getting a better paying job, pension benefits, achieving a position of perceived importance, boredom or no reason at all. Diving candidates’ motives and acting on them is more properly the role of voters,” and concluded, “Plaintiff’s remedy is through the ballot box and not the courts.”
