Thomas M. Ryan (#007724) LAW OFFICE OF THOMAS M. RYAN P.O. Box 6430 Chandler, AZ 85246-6430 Telephone: 480-963-3333 Facsimile: 480-726-1645 tom@thomasmryanlaw.com Attorney for Plaintiff/Contestant IN THE SUPERIOR COURT MARICOPA COUNTY MARY LOU BOETTCHER, an individual, Plaintiff/Contestant, v. KEN BENNETT, in his official capacity as Secretary of State for the State of Arizona; HELEN PURCELL, in her official capacity as Recorder for Maricopa County; FULTON BROCK, ANDREW KUNASEK, DON STAPLEY, MARY ROSE WILCOX, and MAX WILSON, in their official capacities as members of the Board of Supervisors for Maricopa County,
No. VERIFIED STATEMENT OF ELECTION CONTEST (Priority Election Case Pursuant to A.R.S. § 16-671, et seq.)
Defendants, and OLIVIA CORTES, an individual, Defendant/Contestee. Plaintiff/Contestant Mary Lou Boettcher, (“Contestant”) files this Verified Statement of Election Contest, pursuant to A.R.S. §§ 16-671, 673, and 674, challenging the November 8, 2011 Recall Election wherein Defendant/Contestee Olivia Cortes (“Contestee”) will have her name on the ballot as a candidate. For her Verified Statement
of Election Contest, Contestant alleges as follows: PARTIES, JURISDICTION AND VENUE Plaintiff/Contestant 1.
Mary Lou Boettcher is a qualified elector residing at 814 N. Hobson Cir.
Mesa, Arizona 85203 in Legislative District 18 in Maricopa County. Defendant/Contestee 2. LD 18.
Olivia Cortes is currently listed as a candidate for the office of Senator for Upon information and belief, Contestant alleges Ms. Cortes is a registered
Republican and a member of the “Tea Party.� Ms. Cortes is a well-known supporter of recalled Senator Russell Pearce. Upon information and belief Ms. Cortes has voted for Russell Pearce. Upon information and belief, Ms. Cortes has no campaign committee, no volunteers for her campaign, and her campaign is being financed and operated entirely by those who wish to dilute the vote in favor of Recalled Senator, Russell Pearce. 3.
Contestant contests the right of Contestee Cortes to be on the ballot and to
run in the Recall Election currently set for November 8, 2011 because Contestee Cortes is a fraudulent and diversionary candidate within the meaning of Arizona law. Defendants/Arizona & Maricopa 4.
Defendant Ken Bennett is the Secretary of State and, in that capacity, is
responsible for issuing the Certificate of Election for the Recall Election of November 8, 2011 for the office of Senator LD18. 5.
Defendant Helen Purcell is the County Recorder for Maricopa County, and
in that capacity, is responsible for counting, recording, and tabulating the ballots for the November 8, 2011, Recall Election. 6.
Defendants Fulton Brock, Don Stapley, Andy Kunasek, Max Wilson, and
Mary Rose Wilcox of Maricopa County are the members of the Maricopa County Board of Supervisors and, in that capacity, are responsible for receiving the Certificate of Canvass and declaring and adopting the results of the November 8, 2011 Recall Election.
-2-
Jurisdiction and Venue 7.
This Court has jurisdiction of this election contest pursuant to A.R.S. § 16-
671, et seq. 8.
Venue is proper pursuant to A.R.S. § 16-672(B). GENERAL ALLEGATIONS
9.
Contestant incorporates by reference the allegations set forth in the
foregoing paragraphs of this Verified Statement of Election Contest as if fully set forth herein. 10.
On May 31, 2011, Citizens for a Better Arizona Recall Committee
submitted to Secretary of State Ken Benett, 18,305 signatures on 1,705 petition sheets containing the signatures of Arizona citizens who sought the recall of State Senator Russell Pearce of LD 18. On July 7, 2011, the Maricopa County Recorder certified that there were a sufficient number of qualified electors from LD 18 to call for the recall of Senator Russell Pearce. On July 8, 2011, the Secretary of State determined that there were valid signatures of 10,365 qualified electors from LD 18 – a number well in excess of the minimum of 7,756 signatures required – to support the recall of Senator Russell Pearce. Further, on July 8, 2011, the Secretary of State notified Governor Brewer that the Citizens for a Better Arizona Recall Committee met the requirements for recalling Senator Russell Pearce. On July 12, 2011 Governor Brewer signed the official proclamation that Senator Russell Pearce was recalled and the recall election was set for November 8, 2011. 11.
On or about July 27, 2011, Jerry Lewis, a Republican and qualified elector
from LD 18, announced that he was running as a candidate in the Recall Election for the office of State Senator for LD 18. On that same day, the press reported: “One of the Republican Party’s top political heavyweights has a warning for GOP candidates thinking about challenging Senate Russell Pearce in the fall: do at your own risk.
-3-
On Tuesday, Chuck Coughlin said if any
Republicans run against Pearce in the likely recall election they would feel the full force of the party coming down on them. “Politics is a team sport,” Coughlin said Tuesday. “And we’re going to find out which team you’re on.”
His comments come less than a week after a former accounting
executive in Pearce’s Mesa district confirmed he was going to run for the seat in November.
Jerry Lewis, who is a charter school executive, is
described as a staunch Republican and, like Pearce, a member of the Church of Jesus Christ of Latter Day Saints. See The Arizona Guardian, July 27, 2011, (by Dennis Welch) “GOP Consultant: We’ll ‘…find out what team you’re on.’” 12.
Upon information and belief, Contestee was recruited by supporters of
Russell Pearce, in a cynical ploy to take away votes from the candidate Jerry Lewis. Upon information and belief Contestant alleges these supporters believe that the Spanish speaking qualified electors of LD 18 who are dissatisfied with, and afraid of, Senator Russell Pearce’s harsh immigration rhetoric and legislation will be misled into believing that Contestee Cortes would be a viable alternative, when in fact she is a sham. Thus, those votes would be drained away from candidate Jerry Lewis and throwing the election to Recalled Senator Pearce.
Upon information and belief, Contestant alleges that
supporters of Russell Pearce hope to confuse Spanish Speaking qualified electors in thinking that Olivia Cortes is their candidate of choice, thus depriving such voters from the real alternative to Recalled Senator Pearce, Jerry Lewis. 13.
On September 9, 2011 a certain Greg Western turned in qualifying petitions
to place Contestee Cortes’ name on the ballot for the November 8, 2011 Recall Election. Upon information and belief, Contestant alleges the following: • Greg Western is an avowed supporter of Senator Russell Pearce • Greg Western and Olivia Cortes are friends and attend the same Church of the Latter Day Saints in Mesa, Arizona
-4-
• Greg Western recruited Olivia Cortes to allow her name to be placed on the ballot with the cynical hope of diverting votes away from Jerry Lewis • Greg Western is the Chair of the East Valley Tea Party and recently hosted a fund raising event for Senator Russell Pearce 14.
Upon information and belief, Contestant alleges that Franklin Bruce Ross
was one of the circulators of petitions for Olivia Cortes. Franklin Bruce Ross was also the sole plaintiff in Ross v. Bennett, Maricopa County Cause No. CV 2011-011864. Ross v. Bennett, was an action filed to stop the Recall of Senator Russell Pearce from moving forward. This action was unsuccessful. Upon information and belief, Franklin Bruce Ross circulated petitions in a cynical effort to obtain signatures to place Olivia Cortes on the ballot for the November 8, 2011, Recall Election. Upon information and belief, Franklin Ross circulated the petitions of Olivia Cortes with the full knowledge she was a fraudulent and diversionary candidate whose name on the ballot would only help his candidate of choice, Russell Pearce.
Franklin Ross was also a signer as a qualified
elector on the petition he circulated on behalf of Olivia Cortes. 15.
Upon information and belief, Contestant alleges that Patricia “Pat” Oldroyd
is also an avowed supporter of Senator Russell Pearce. Patricia “Pat” Oldroyd circulated petitions in a cynical effort to obtain signatures to place Olivia Cortes on the ballot for the November 8, 2011, Recall Election. Upon information and belief, Patricia “Pat” Oldroyd circulated the petitions of Olivia Cortes with the full knowledge Cortes was a fraudulent and diversionary candidate. Patricia “Pat” Oldroyd is a Precinct Committewoman from LD 19 who recently submitted a resolution at the LD 19 Republican Committee Meeting in support of Senator Russell Pearce in this Recall Election. 16.
Upon information and belief, Contestant alleges that a paid circulator known
as Suzanne Dreher was hired by supporters of Senator Russell Pearce to collect signatures on nomination petitions to secure the nomination of Olivia Cortes as a candidate on the
-5-
ballot for the November 8, 2011 Recall Election. Suzanne Dreher is on tape explaining to potential qualified electors that if they supported State Senator Russell Pearce it was important to sign Olivia Cortes’ petitions because the purpose of putting Cortes’ name on the ballot was to “divide the vote.” When asked to explain what this meant, Ms. Dreher explained that Senator Russell Pearce would most likely lose if there was only one other candidate. 17.
Upon information and belief, Contestant alleges that Contestee Cortes is no
more than a sham candidate whose sole function is to mislead voters in LD 18. As evidence of this we also allege: • Contestee Cortes has no campaign headquarters • Olivia Cortes has no campaign committee • Contestee Cortes has no fundraising efforts • Contestee Cortes has declined any volunteers, and even posted a note on her front door to this effect • Contestee Cortes has declined to be interviewed by the media on multiple occasions • Constestee Cortes has no election website • Contestee Cortes’ campaign signs do not contain any contact information • Contestee Cortes’ campaign signs contain the phrase “Si Se Puede” which is a phrase most closely associated with the Cesar Chavez and the United Farm Workers, which are the polar opposite of Cortes’ actual beliefs and those beliefs of Senator Russell Pearce. 18.
On information and belief, Contestee allowed her name to be placed on the
ballot with full knowledge that she is not a bona fide candidate and that her sole purpose of allowing her name on the ballot is in the cynical hope that she will mislead Spanish
-6-
speaking voters to voter for her rather than Jerry Lewis, and thus, throwing the election to her political idol, Recalled Senator Pearce. 19.
On information and belief, Contestee is running for the office of LD 18
Senator with the intent of deceiving Arizona voters and, based on that deception, cause Arizona voters to vote for Contestee in the Recall Election, therefore securing Contestee’s ability to improperly affect the outcome of the Recall Election—a reasonably contemplated result of Contestee’s material and false misrepresentations and deception. 20.
On information and belief, relying on Contestee’s false and material
misrepresentations, Arizona voters will be likewise deceived, misled, and confused about the true nature and intent of Contestee and deceived into voting for her in the November 8, 2011 Recall Election. 21.
On information and belief, Contestee’s actions will affect the purity of the
November 8, 2011 Recall Election within the meaning of Arizona Constitution, Art. VII, Sec. 12 which states: “There shall be enacted registration and other laws to secure the purity of elections and guard against abuses of the elective franchise.” 22.
On information and belief, Arizona voters will be denied a fair and pure
election and subjected to abuse of the elective franchise in violation of the Arizona Constitution, Article 7, § 12. COUNT ONE (Violation of A.R.S. §§ 16-674(A) and 672(A)(5)) 23.
Contestant incorporates by reference the allegations set forth in the
foregoing paragraphs of this Verified Statement of Election Contest as if fully set forth herein. 24.
Pursuant to A.R.S. § 16-672(A)(3) “[a]ny elector of the state may contest
the election of any person declared elected to a state office . . . upon any of the following grounds: [t]hat the person whose right is contested or any person acting for him, has given to an elector, inspector, judge or clerk of election, a bribe or reward, or has offered
-7-
such bribe or reward for the purpose of procuring his election, or has committed any other offense against the elective franchise.” 25.
Upon information and belief, Contestee has allowed her name to be placed
upon the Recall Election ballot with the intent of misleading, confusing, and deceiving voters into voting for mala fides candidates and affecting the outcome of the general election, in violation of, among other things, Arizona Constitution Article 7, § 12 and A.R.S. §§ 16-1001-1021, 13-2310, 2311, and 2407. 26.
Upon information and belief, but for Contestee’s deceit, Contestee would
not receive votes in the general election. COUNT TWO (Temporary Restraining Order and Preliminary Injunction Pursuant to Ariz. R. Civ. Pro. 65(d)) 27.
Contestant incorporates by reference the allegations set forth in the
foregoing paragraphs of this Verified Statement of Election Contest as if fully set forth herein. 28.
Contestant requests temporary restraining order and preliminary injunctive
relief to enjoin Defendants from printing and distributing to voters and election officials the general election ballots. 29.
As alleged in this Verified Statement of Election Contest, Contestant has a
strong likelihood of success on the merits and will suffer immediate and irreparable harm if the Recall Election ballots are printed and distributed with Contestee’s name. 30.
The threatened irreparable injury to Contestant and the purity of the elective
franchise is substantial, and because Contestant is only seeking a brief delay, granting the requested injunctive relief will not cause Defendants to suffer any harm. 31.
Notice to opposing parties and their counsel is not required because of the
numerosity of the defendants and the expedited timeframe in which to file this election contest.
-8-
32.
Moreover, granting the requested injunctive relief will promote the public
interest by preserving the status quo until this Court can determine the legitimacy of this candidate. PRAYER FOR RELIEF WHEREFORE, Contestant prays for the following relief: 1.
That this Court set this matter for a hearing on an expedited basis pursuant
to A.R.S. § 16-676(A); 2.
That this Court preserve the status quo and temporarily and preliminarily
enjoin Defendants named in their official capacities from printing and distributing to voters the general election ballots until this matter is resolved; 3.
That this Court declare that Contestee cannot appear on the recall election
4.
That this Court award Contestant her attorneys’ fees and costs pursuant to
ballot;
any applicable statute or rule; and 5.
That this Court award Contestant any other and further relief as may be
appropriate. Dated this 23rd day of September, 2011. LAW OFFICE OF THOMAS M.RYAN
By: /s/ Thomas M. Ryan P.O. Box 6430 Chandler, Az 85246-6430 Attorney for Contestant
-9-
VERIFICATION I, Mary Lou Boettcher, declare as follows: 1.
I am a qualified elector of Legislative District 18 and qualified to vote for
statewide and legislative offices in that district. 2.
I have read the foregoing Verified Statement of Election Contest, and I am
familiar with the contents thereof. I believe the contents thereof to be true and correct, based in part upon my personal knowledge and in part upon information provided by others, except as to the matters therein stated to be alleged on information and belief, and, as to those matters, I believe them to be true. I declare under penalty of perjury that the foregoing is true and correct. Executed at Chandler, Arizona on September 23rd , 2011.
Mary Lou Boettcher 2
-10-