City attorney weighs in on Surprise election debate; embattled candidate remains confidant

By Matt Roy, Independent Newsmedia

With a month remaining before the general election, questions remain about the eligibility of one Surprise City Council candidate.

Following the Aug. 28 primary election – during which Jim Cunningham and incumbent Roland F. Winters Jr. garnered 38 and 36 percent of the vote respectively to advance to a general election runoff – a complaint was filed against Mr. Cunningham claiming he had not registered to vote in Surprise and was, therefore, not eligible to remain on the ballot.

The City Attorney’s Office verified the claim in a Sept. 25 statement that Mr. Cunningham had not filed to vote before filing to run in Surprise, as is required by law.

“To be a ‘qualified elector,’ a person must be a registered voter in Surprise.  If a candidate is not a ‘qualified elector’ when he or she files their nominating papers, they are not eligible to be elected,” according to the statement.

But because the complaint against him was filed too late (more than five days after the Sept. 11 certification of the final count), Mr. Cunningham would remain on the ballot.

As voters prepare to choose a candidate, the question remains: What happens if Mr. Cunningham wins a majority of votes in the Tuesday, Nov. 6 general election?

The city’s Sept. 25 statement addressed the issue, in part.

“In the event Mr. Cunningham receives the majority of votes cast in the November general election, Arizona statutes provide for an additional opportunity for a Surprise elector to challenge, by court action, his eligibility to hold office,” according to the release.

But despite the statement, both sides continue to wrangle over its meaning and implications should Mr. Cunningham prevail in November.

According to Mr. Cunningham, his failure to register was a simple mistake and has no bearing on his ability to continue to run for the District 1 seat.

“I corrected the registration issue the next day and as the city has indicated the election is proceeding as normal. I am diligently campaigning for the upcoming election,” Mr. Cunningham stated. “The city has concluded there is no reason that I should not maintain my candidacy. And more importantly, the people have spoken up and indicated their support for my candidacy.”

He also asserted that, if elected, his eligibility to serve cannot be questioned, since he registered to vote after the complaint was filed.

“The law is very clear that in order to be eligible to serve on the City Council, a person must be a qualified elector – at the time of the election – and must have resided in the district for at least one year prior to the election. I meet both of those requirements and, therefore, if I win then I am legally able to serve,” Mr. Cunningham stated.

His opponent, Mr. Winters, holds a diametric position on the matter.

“He is not a legal candidate and a vote cast for him is a useless vote. Now the taxpayers of Surprise must pay all the attorneys to straighten out the mess he created,” Mr. Winters stated.

City Attorney Robert Wingo offered some clarification about the issue in an email statement last week.

According to Arizona law, any elector in Surprise may challenge Mr. Cunningham’s eligibility – as long the challenge comes within five days of the city’s general election canvas. The challenge would be decided in Maricopa County Superior Court.

“This seems to be the obvious choice to challenge the election results, since A.R.S. 16-672 expressly provides that one of the grounds for challenge under this statutory scheme is, ‘That the person whose right to the office is contested was not at the time of election eligible to the office,’” Mr. Wingo stated.

State officials could also step in, according to A.R.S 12-2041, which states: “An action may be brought in the supreme court by the attorney general in the name of the state  … upon the verified complaint of any person … against any person who usurps, intrudes into or unlawfully holds or exercises any public office or any franchise within this state. The attorney general shall bring the action when he has reason to believe that any such office or franchise is being usurped, intruded into or unlawfully held or exercised.”

Barring a challenge from the public or the attorney general, Mr. Winters could still file his own challenge, even after Mr. Cunningham might be seated.

“In the event either the attorney general or county attorney declines to bring such an action, there is a private quo warranto action available to an individual claiming such office, which in this case would be incumbent Councilman Winters,” Mr. Wingo explained.

Mr. Wingo said he could not predict the likelihood of such actions; but he noted in a 1999 case, a seated candidate elected to the Arizona Corporation Commission was challenged and eventually removed and replaced by appointment.

Ray Grim, who was eliminated in the three-way race for the District 1 seat in the August primary, has thrown his support behind Mr. Cunningham and suggested if voters choose him, he should still serve in the position regardless of any potential legal challenges.

“I’m not convinced that if Jim Cunningham wins he would be removed from serving. If a citizen files to have Mr. Cunningham removed and he’s removed, the seat then becomes vacant,” Mr. Grim stated. “If this is the scenario, then I believe it’s the council’s responsibility at that time to appoint the person the voters wanted to represent them. In this case, Jim Cunningham should be appointed by council.”

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