asssuming a challenger in the november election is alleged to not meet the residency requirements to hold the office, and the challenger wins on election day....can a quo warranto be filed prior to the challenger actually taking office on jan. 1st.....or must the action be filed once the challenger becomes an "office holder". futher assume it is too late for the challengers name to be removed from the ballot.
It is my opinion that the clerk can be instructed / enjoined not to certify the candidate. The District Judge would have to determine that the person was statutorily ineligible to take office and that the flaw could not be remedied. That would, I think, put the person in the position of a deceased candidate whose name may still be there but cannot be sworn in.
I'm on vacation (sort of) and not able to stay on the internet - but that's my thought.
If you want to talk, get my cell # from Kandy (explain the situation and she should give it to you) I'll be through testing dogs about 5 Eastern.
thanks lisa i am not involved in the certification issue....however it wouldnt surprise me if the judge takes the issue under advisement until after next tuesday as the issue will either be ripe or moot by then....if the challenger wins i may have to spend some time looking into the issue. From my brief research, it appears that if the challenger receives the most votes but cannot be sworn in, the seat becomes vacant in january....the "loser" of the election doesnt automatically claim the position simply because the challenger was subsequently ruled ineligble. however, that is only a small amount of research...i havent had time to get very deeply into it.
Scott Brumley. The loser cannot be certified by anyone as the winner. If you don't get enough votes you cannot be certified. That is why the big fight is to keep the unqualified off the ballot.
if the seat in question is a commissioner, what is your opinion about filing a recusal and asking the judge to appoint a pro-tem to prosecute the action if needed? if the challenger wins and a quo warranto is filed....and the removal is not granted, the prosecutor would then have a commissioner setting the budget of that office, etc.....who could very well hold a grudge....i think the situation would be different if it was an elected position that didnt have budgetary control of the prosecutors office(eg.constable) any thoughts?
The last time I looked at that, I thought the residence requirement was fairly open in its definition. We had a guy claiming his mother's residence and was running for constable. He lived and worked approx 150 miles away. However he spent the weekends with his mother--and the definition was open to this going to the intent of the person filing. Just wondering if your facts are worth the fight.
