A Maricopa County Superior Court judge is weighing whether to remove Navajo County Recorder David Marshall from his position after the Arizona Attorney General’s Office argued Marshall isn’t eligible to hold the office.
Marshall, a Republican who was re-elected to the Legislature in 2024, resigned from the Arizona House of Representatives in April shortly before the Navajo County Board of Supervisors appointed him to fill a vacancy in the Recorder’s Office, which oversees voter registration and other election duties in collaboration with the board.
Less than a month later, Attorney General Kris Mayes filed what is called a quo warranto action, which is a legal challenge against someone accused of holding an elected office illegally.
Mayes accused Marshall of violating a state constitutional provision that bars legislators from holding other county or statewide elected offices “during the term for which he shall have been elected.”
The Attorney General’s Office has argued that means Marshall isn’t eligible to hold most other state, county or local offices until January 2027, when the next Legislature takes office.
But Linley Wilson, Marshall’s attorney, said that isn’t true, and argued that by resigning, Marshall satisfied that constitutional requirement.
On Monday, Nathan Arrowsmith with the Attorney General’s Office asked a judge to reject Wilson’s interpretation, arguing the specific language in the constitution matters.
“(Marshall) asks … that you read that phrase to be saying ‘during the term of legislative service,’ but that’s not what the text says, and that’s reading words into the Constitution that aren’t there,” Arrowsmith said.
Wilson argued that the state’s quo warranto law does not give the attorney general the power to try to remove someone from office for violations of the state Constitution. That’s because state law says the attorney general can bring a case against anyone who “unlawfully holds or exercises any public office or any franchise within this state.”
“That again is narrow and only allows for an allegation that someone is unlawfully holding office, not unconstitutionally allegedly holding office,” Wilson said.
Judge David McDowell appeared skeptical.
“The Constitution isn’t a state law?” he asked.
The ongoing legal battle is happening as counties across the state are preparing to send early primary ballots to voters this week.
What’s the harm?
Wilson cited a 1961 case where the Arizona Supreme Court allowed Robert Myers to keep his appointment as a superior court judge even though he was elected to serve in the Arizona Senate.
However, in that case, Myers was never sworn in as a lawmaker before he accepted the judgeship.
Marshall, on the other hand, was sworn in to serve a two-year term in January 2025 before resigning this year.
“I do think that Myers would have been decided differently had the individual there actually taken the seat,” Arrowsmith said.
The judge pointed out that in the Myers case, the Supreme Court found that the purpose of the constitutional rule barring lawmakers from taking other offices was to prevent legislators from engaging in self-dealing. They could do that by backing laws that affect the other public offices they hold.
The court found that Myers couldn’t engage in that self-dealing, because he never actually took office as a lawmaker.
“How is that different from this situation where Mr. Marshall has resigned his seat, doesn't have the ability to influence legislation any more than any other individual could?” McDowell asked.
Arrowsmith argued the situations are different and create a public perception problem, even if no self-dealing actually occurred.
“I think that the difference in Myers is that Mr. Marshall had 15 months as a legislator, where he did participate in the legislative process,” he said. “He did have the opportunity to influence legislation, participate in committees, floor debates, all of the above.”
Marshall did vote on legislation that could affect recorder’s offices during his time as a lawmaker.
For instance, he voted in favor of a bipartisan bill this year that moved the primary election date up to July 21 and made other changes to election rules. He also voted on seven other pieces of legislation that didn’t make it into law in 2025 that dealt with responsibilities of county recorders, according to the Arizona Legislature’s bill-tracking system.
Whose power is it anyway?
Wilson also argued that state law gives the Navajo County Board of Supervisors, not the attorney general, the power to vet candidates like Marshall, who want to fill vacancies at the county level.
Letting Mayes attempt to remove Marshall from office would undermine that authority, she claimed.
But the Attorney General’s Office said the law only lets supervisors consider specific requirements, like whether the candidate is a resident of the county and old enough to hold the position.
And the judge asked whether the board actually considered whether Marshall’s appointment could violate the Arizona Constitution.
“I don't know for sure, but the board acted with the advice of its county attorney, and so I can't speak to what the board considered in its appointment process, but it was presumed to know the law and know the constitutional provisions and state law,” Wilson said.
However, Navajo County Attorney Brad Carlyon told Axios Phoenix he forgot about the constitutional provision until after the supervisors voted to appoint Marshall and later informed the new recorder that he could face a court challenge if he accepts the appointment.
