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Judge: Kirkpatrick to stay on ballot; petition challenge by Heinz fails

An Arizona judge ruled Tuesday that congressional candidate Ann Kirkpatrick can remain on the Democratic primary ballot, despite a challenge to her nominating petitions backed by opponent Matt Heinz.

Heinz, among the seven Democrats vying to run in Southeast Arizona's 2nd Congressional District, funded a lawsuit to try to have seeming front-runner Kirkpatrick's name pulled from the ballot in the August primary.

Maricopa County Superior Court Judge Joshua Rogers released his 10-page decision Tuesday, after holding oral arguments and hearing testimony in the lawsuit on Monday.

Heinz had alleged that Kirkpatrick filed nominating petitions that didn't include her correct address. Heinz, who lost the 2016 general election in the district to U.S. Rep. Martha McSally, claimed Kirkpatrick lives at a home she owns with her husband in Phoenix, instead of either of the two address she used on petitions she circulated to get on the ballot.

Kirkpatrick, a former congresswoman from Flagstaff who lost a 2016 Senate race to John McCain, maintains she moved to Tucson about a year ago, and rents an apartment here. She's attempting to win a seat in Congress from a new district.

The judge ruled that, even if some of her petitions improperly used a previous Tucson address, Kirkpatrick can remain on the ballot because after she announced her candidacy in July 2017 and began collecting signatures, she "was physically present in Tucson and had an intent to remain in Tucson."

Kirkpatrick still owns a home in Flagstaff and spends some time at the Phoenix condominium she owns with her husband, lawyer Roger Curley, but she spends enough time and conducts enough activities in the Tucson area that she is a resident here, the judge ruled.

"Residence is determined by both physical presence and intention," Rogers wrote. The judge found that, among other things, Kirkpatrick's apartment (subleased from her stepson) contains her personal furniture, that she shops for groceries in Tucson, prepares meals and keeps her everyday clothing at the apartment, purchases gasoline in Tucson on a regular basis, sees a doctor and buys prescription medication here, and keeps personal effects such as family photographs at her apartment.

Kirkpatrick registered to vote in Tucson in July 2017, and changed the address of her registration to the apartment address in March 2018, the court record showed.

The judge found that although some of Kirkpatrick's nominating petitions circulated after she changed her local address in October 2017 still bore her previous address, that was a "technical error" that would not "serve to mislead or confuse the electorate," as her petitions were in "substantial compliance" with the law.

Kirkpatrick's campaign blasted Heinz in a statement: "Ann Kirkpatrick lives in Tucson in District 2, despite the ridiculous assertions made by Matt Heinz, who lives in District 3. With today's court ruling, all doubts have been put to rest. Given that Heinz is afraid to face Ann in this summer's primary, we understand that he may appeal the ruling."

Heinz's campaign spokesman fired back that "We respectfully disagree with the judge's ruling. It was proven in court that Ann Kirkpatrick currently claims her residence in Flagstaff as her primary residence in order to receive tax credits. And it was proven that she currently claims her residence in Phoenix as her primary residence in order to obtain bank loans as well as tax credits. Now she wants us to believe her primary residence is in Tucson, even though she admitted on the stand that her husband lives in Phoenix and that she circulated nominating petitions for an address she doesn't live at."

Under the U.S. Constitution, members of the the House of Representatives are not required to reside in the districts they are elected to represent in Congress.

The suit pressed by three supporters of Heinz was based not directly on residency, but on claims that Kirkpatrick's nominating paperwork should be tossed out because she had not included her correct address when asking voters to sign petitions to have her name added to the ballot.

The suit alleged that "Kirkpatrick claims to actually reside in Southern Arizona. However, Kirkpatrick does not actually reside in Southern Arizona, but instead resides in Maricopa County .... Kirkpatrick has defrauded, misled, and confused the electorate...."

A spokesman for Kirkpatrick's campaign, Rodd McLeod, said emphatically last week that "Ann Kirkpatrick lives in Tucson."

"She's lived in Tucson since last spring. She rented a house on Woodspring (Drive), and then moved to an apartment on Shannon (Road) that she shares with her son," McLeod said.

"Apparently to run in District 2, you need to live in District 3," McLeod said, referencing a home owned by Heinz that sits in the cross-town congressional seat held by U.S. Rep. Raul Grijalva.

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Heinz's campaign has for a year drawn attention to Kirkpatrick's decision to register to vote and declare her candidacy in Southern Arizona last July, carefully avoiding the term while invoking the spirit of the "carpetbagger" charges made against her by Republicans.

Kirkpatrick won her previous district, which sprawls from the Utah border south to Flagstaff, encompassing much of Eastern Arizona and reaching all the way down to Oro Valley, in 2008, 2012 and 2014. She lost a race for that seat in 2010, and was swamped when she ran against U.S. Sen. John McCain in 2016.

Also in the race on the Democratic side are Mary Matiella, a former assistant Army secretary seeking elected office for the first time; and political newcomers Billy Kovacs, Barbara Sherry and Yahya Yuksel. Former state representative and ex-Tucson City Councilman Bruce Wheeler is again running in the Democratic congressional primary.

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Paul Ingram/TucsonSentinel.com

Kirkpatrick at a February debate in Green Valley.