PHOENIX – Gov. Janet Napolitano says the Arizona Constitution’s “anachronistic” provision that says she loses her gubernatorial authority when absent from the state is the law as written but that reality is another matter.
A provision that dates from statehood nearly a century ago says a governor’s powers go to the secretary of state when the governor is absent. Arizona does not have a lieutenant governor.
Citing improved communications now available, senior Napolitano aides have said over the years that they believe Napolitano retains her authority as governor even when outside the state.
Napolitano has left the state numerous times since becoming governor in January 2003, but Secretary of State Jan Brewer just recently took official action as acting governor when she signed a flooding emergency order on Aug. 28 at Napolitano’s behest while Napolitano vacationed in Italy.
Napolitano, a Democrat, was asked about the constitutional provision last week during her first media availability since she returned.
“There is a concept in the law of ‘de jure’ and ‘de facto,’ ” said Napolitano, a former state attorney general whose law license is on inactive status.
“De jure means as written. De facto means as it really is. As written, of course, right now if I am out of the state, the secretary of state can act in the place of the governor. De facto, in reality what happens is that I still govern whether I am in the state or out of the state,” she said.
“At some point it might be, you know, nice to amend the state Constitution to get rid of that anachronistic division but that’s the way it is and that’s the way we’ve been treating it,” she said.
Napolitano stressed that she and Brewer, a Republican, haven’t had problems with the constitutional provision since they both assumed their current offices more than 4 1/2 years ago.
“We ourselves have never had an issue with this,” Napolitano said when asked about the constitutional provision.
What if there is a problem?
“We’re not playing what-ifs,” she replied.