Legislators free to seek vacated Congressional seat without quitting Legislature

December 18, 2017 GMT

PHOENIX — Sitting state lawmakers are free to run for the now-open congressional seat vacated by Trent Franks without having to quit their current job — at least according to an attorney paid by state lawmakers.

Ken Behringer, general counsel of the Legislative Council — the legal arm of the Legislature — acknowledged that the Arizona Constitution says lawmakers convene each year on the second Monday in January. For 2019, that means Jan. 14.

What makes that significant is Arizona law says elected officials who run for any other office forfeit their current one if it’s not in the last year of their current term.

The deadline to file for Franks’ CD 8 seat is Jan. 10, 2018.

But Behringer, asked to look at the issue by legislative leaders, dismissed the contention that the Jan. 14, 2019 start date of the new Legislature means anyone who files for Franks’ office before Jan. 14, 2018 has to resign.

He contends that that second Monday reference in the Arizona Constitution refers only to when lawmakers meet. Behringer said he reads another section of the document to say that the terms actually start the first Monday in January -- giving congressional wanna-bes enough time to meet the filing deadline to run for Congress without triggering the resign-to-run law.

Ultimately, though, what Behringer things does not matter.

Under Arizona law, the only person who can seek to have an elected official declared holding office illegally -- whether for resign-to-run violations or anything else -- is Attorney General Mark Brnovich. And as of late Thursday he had yet to weigh in.

Current state Sen. Steve Montenegro, R-Litchfield Park, is not taking any chances. He already said he will quit today (eds: friday).

Fellow Sen. Debbie Lesko, R-Peoria, who said she hasn’t yet made a formal decision about running for Congress, said if she does make a bid for Congress she will announce at that time if she will try to keep her Senate seat for the session. But Lesko said that, for all practical purposes, it would likely be difficult to run in a primary while trying to fulfill her legislative duties, regardless of what the resign-to-run law requires.

Also yet to decide whether to run for Congress are Sen. Kimberly Yee, R-Phoenix, Rep. Tony Riveo, R-Peoria, and Rep. Darin Mitchell, R-Goodyear.

The unexpected vacancy follows Franks resignation last Friday after he admitted that he talked with female staffers about being a surrogate mother for he and his wife, who have had trouble conceiving, reportedly offering $5 million for the service.

With congressional seats opening up infrequently, the vacancy has attracted more than a dozen Republicans, including other elected officials like Maricopa County Supervisor Clint Hickman, as well as several Democrats. The special primary election is set for Feb. 27, with the general election on April 24.

Whoever wins would have to immediately begin campaigning for the regular August primary, as the special election determines only who completes the current two-year term that ends at the end of 2018.