Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Arizona’s free newsletter here.Arizona Attorney General Kris Mayes is seeking to oust newly appointed Navajo County Recorder David Marshall from his position, arguing that he isn’t eligible to hold the office under a long-disputed section of the state constitution.Her legal challenge, filed in Maricopa County Superior Court on Thursday, comes on the heels of a similar lawsuit against Marshall, a former Republican state representative who quit his post to take the recorder’s appointment. Realtor Suzanne Hudspeth, who lost out to Marshall for the recorder job, filed that case earlier this week. Both cases center on a provision of the state constitution that says “no member of the legislature” can hold a different elected office or government job “during the term for which he shall have been elected.”Historically, there have been mixed interpretations of what exactly that means. It could mean that a lawmaker simply has to resign their seat before being sworn into another office, as Marshall did. But some say it means that a state legislator cannot hold another office until the end of their elected term. In Marshall’s case, that would bar him from becoming recorder until January 2027.State prosecutors wrote that Marshall was “ineligible to hold any other office until the expiration of the term to which he was elected,” and was “unlawfully” holding the recorder’s seat. Hudspeth said in her suit that Marshall was “usurping” the office.Marshall did not respond to a request for comment from Votebeat — but he looks poised to fight back. His attorney, Linley Wilson, wrote in a May 6 letter to Mayes that she had erred in her reading of state law.“Respectfully, your office’s position is incorrect,” Wilson wrote. “The constitutional text, its historical purpose, the relevant Arizona authorities, applicable statutes, and persuasive decisions from other jurisdictions all strongly support the conclusion that Recorder Marshall is lawfully holding the office.”The new cases represent yet another odd turn in a long-running saga involving the position. Former Navajo County Recorder Tim Jordan, a Republican, resigned earlier this year after taking a plea deal on criminal charges connected to a road rage incident.Then, the county board picked Marshall to fill the vacancy, a decision that left many political observers scratching their heads. State law required the board, on which Democrats hold three of five seats, to pick a member of the same political party as Jordan. But Marshall appeared the farthest right of the three finalists. As a lawmaker, he was a member of the ultra-conservative Freedom Caucus, and he supported legislation to ban vote centers, severely restrict mail voting, require ballots cast in local elections to be counted by hand, and more.Now, Mayes and Hudspeth are strange bedfellows.Hudspeth, like Marshall, is a Republican. She’s being represented by Tim La Sota, a conservative attorney who had signaled for weeks that he intended to take up a case challenging Marshall’s eligibility — which is surprising, given that he has long been closely affiliated with many of Marshall’s former allies in the Arizona Capitol.Meanwhile, Mayes, a Democrat, has been praised by many members of her party as its fiercest fighter in Arizona. She faces reelection this year.Key constitutional provision has long been disputedExisting case law and historical interpretation has split on the exact meaning of the constitutional provision at issue.Mayes and Hudspeth each cited a 1977 advisory opinion authored by former Arizona Attorney General Bruce Babbitt, a Democrat. He wrote that the “constitutional provision, on its face, clearly prohibits the taking of any other office or employment during the elective term, whether or not the legislator resigns.”“Therefore, unless you resign from your position as Navajo County recorder, this office will be required to file a quo warranto action in the Arizona Supreme Court,” Mayes wrote in an April 24 letter to Marshall. “I encourage you to promptly resign so as to avoid such an outcome. I wish you the best and seek only to ensure that important offices are held lawfully under the Arizona Constitution.”But Wilson said in her letter to Mayes that legal opinion is far from bulletproof. She called it “outdated,” “nonbinding,” and “unpersuasive,” and said it represented “one lawyer’s view of the law and nothing more.”She also cited several prior court cases — all arising under slightly different circumstances than Marshall’s appointment — that she said contradicted Mayes’ and Hudspeth’s interpretation of the law.In 1973, the state’s highest court held that the attorney general could not bar the appointment of a member of the Arizona House of Representatives to a vacancy in the Arizona Senate, she noted. In 1984, it ruled that enforcement of the state’s resign-to-run law should arise only where “an incumbent does not resign as he is required to” before offering themselves for another position.Additionally, Wilson pointed to Pickrell v. Myers, a 1961 case in which the court determined that a person who was elected to the legislature, but was never seated or took the oath of office, was able to pursue appointment as a superior court judge. The court specifically grounded its reasoning in its interpretation of what it means to be a “member of the legislature” under the state constitution, she said.“Here, Mr. Marshall resigned from the Arizona House of Representatives before he was sworn in as Navajo County recorder,” Wilson wrote. “When he assumed the recorder’s office, he was not a ‘member of the legislature.’”La Sota also cited the 1961 case in his filing on behalf of Hudspeth — but he drew the opposite conclusion from it, suggesting that since Marshall had been sworn in and seated, he did qualify as a “member.”Wilson said that she was unaware of any case in which a court in Arizona had ever held that a legislator who resigned before assuming another appointed office was subject to ouster.“To our knowledge, every reported case in which ouster resulted involved a public officer who failed to resign or failed to cure a disqualification before assuming office,” she told Mayes, adding that “the facts here present a poor vehicle” for legal action.Sasha Hupka is a reporter for Votebeat based in Arizona. Contact Sasha at shupka@votebeat.org.
