Why Jan Brewer is waiting to act on SB 1062

February 26

Arizona Gov. Jan Brewer (Ross D. Franklin/AP)

Arizona Gov. Jan Brewer (R) is at the center of a political firestorm over a bill that would allow businesses to refuse service to gays and lesbians on religious grounds. A coalition of liberals, businesses, even the National Football League wants her to use her veto pen. Some conservatives are coming to the bill’s defense and urging Brewer to sign it into law.

Brewer has until Feb. 28 — this Friday — to act. But, as with other controversial legislation during her tenure, Brewer has put off a formal decision until the last possible moment.

Why is Brewer prolonging the agony and suffering, and the intense political pressure from both sides? Because she’s still thinking about her own electoral future.

Brewer took over the governorship after her predecessor, Democrat Janet Napolitano, left in 2009 to become President Obama’s first Secretary of Homeland Security. She won a full term on her own in 2010, when she beat Arizona Attorney General Terry Goddard by a wide 55-42 percent margin.

Arizona’s constitution originally omitted any mention of term limits. Since joining the Union in 1912, three governors — George W.P. Hunt, Sidney Osborn and Jack Williams — won election to at least three terms (Osborn won four two-year terms, but he died in office during his fourth term).

In 1970, Arizona governors began serving four-year terms. In 1992, Arizona voters passed a constitutional amendment limiting governors to two consecutive terms. “No member of the executive department,” consisting of the governor, secretary of state, treasurer, attorney general and superintendent of public instruction “shall hold that office for more than two consecutive terms,” the state constitution reads.

Brewer, though, has argued that she doesn’t meet the two-term requirement, because she served less than one half of Napolitano’s unexpired term. “The constitution is not really clear” on whether she could run again, Brewer told the Arizona Republic back in 2011, after she won her first full term. “It’s never been challenged.”

The state constitution seems clear on that point: “No member of the executive department after serving the maximum number of terms, which shall include any part of a term served, may serve in the same office until out of office for no less than one full term,” it reads.

Cut and dried, right? Well, not according to Brewer’s longtime attorney. In an op-ed published in November 2012, the attorney, Joseph Kanefield, argued that the provision “was intended to apply only to an elected or appointed partial term rather than one in which a governor inherits the office by constitutional succession.”

“The voters created the term-limits law and they should resolve any ambiguity by expressing their collective opinion at the polls should Gov. Brewer seek two elected terms,” Kanefield wrote.

To this day, Brewer hasn’t formally ruled out challenging the state constitution and running for a second elected — and third overall — term.

“I’ve had a plan for the state from the beginning, and I want to make sure that that plan is going to be completed 100 percent,” Brewer told the Republic earlier this week. “If not me, then who?”

“It’s hard to let go, especially when we’ve been successful,” Brewer added. She said she would make a formal announcement about her plans in short order, around March 1 — Saturday.

Most legal experts don’t agree with Kanefield’s assessment, and most Arizona Republicans assume Brewer won’t make the uphill legal challenge. A full roster of big-time elected officials, including Secretary of State Ken Bennett (R), state Treasurer Doug Ducey (R), state Sen. Al Melvin (R) and former Mesa Mayor Scott Smith (R) are already raising money and running full out in advance of Arizona’s Aug. 26 primary.

Smith, notably, is getting help from Highground Public Affairs Consultants, the shop headed by Chuck Coughlin, Brewer’s longtime political adviser. If Coughlin is working for another candidate, state Republicans assume he knows Brewer won’t run. Similarly, vetoing the legislation would be a signal, most Republicans assume, that Brewer is done with politics (An important note: Ducey, Bennett and Smith all said they would veto the bill).

Brewer owes part of her political career to controversial legislation. In 2010, the Arizona legislature passed Senate Bill 1070, which made illegal immigration a state crime. The bill elicited all kinds of protests, and Brewer initially hesitated over whether to sign it. She faced a competitive Republican primary that year; after embracing the bill and signing it in a ceremony that was covered live on cable news networks, Brewer’s primary opponents faded. She won the Republican primary with 81 percent of the vote.

Brewer may believe her political options are still open, but some observers say she’s setting everyone up for a disappointment. Opponents of SB 1062 are growing increasingly angry at Brewer’s refusal to use her veto pen, while her indecision is giving proponents what is likely false hope that she’ll sign it.

Reid Wilson covers state politics and policy for the Washington Post's GovBeat blog. He's a former editor in chief of The Hotline, the premier tip sheet on campaigns and elections, and he's a complete political junkie.
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