Ariz. Alliance for Retired Ams., Inc. v. Crosby

• Docket Number: 2 CA-CV 2022-0136
• Decision Date: 18 October 2023
• Citation: Ariz. Alliance for Retired Ams., Inc. v. Crosby, 107 Arizona Cases Digest 44, 537 P.3d 818 (Ariz. App. 2023)
• Parties: ARIZONA ALLIANCE FOR RETIRED AMERICANS, INC., and Stephani Stephenson, Plaintiffs/Appellees, v. Tom CROSBY, Ann English, and Peggy Judd, in their official capacities as the Cochise County Board of Supervisors; and David Stevens, in his official capacity as the Cochise County Recorder, Defendants/Appellants.
• Court: Arizona Court of Appeals

107 Arizona Cases Digest 44

537 P.3d 818

ARIZONA ALLIANCE FOR RETIRED AMERICANS, INC., and Stephani Stephenson, Plaintiffs/Appellees,

v.Tom CROSBY, Ann English, and Peggy Judd, in their official capacities as the Cochise County Board of Supervisors; and David Stevens, in his official capacity as the CochiseCounty Recorder, Defendants/Appellants.

No. 2 CA-CV 2022-0136

Court of Appeals of Arizona, Division 2.

Filed October 18, 2023

Herrera Arellano LLP, Phoenix, By Roy Herrera, Daniel A. Arellano, and Jillian L. Andrews and Elias Law Group LLP, Washington, D.C., By Aria C. Branch, Lalitha D. Madduri, Christina Ford, Mollie DiBrell, and Daniel, Cohen, Counsel for Plaintiffs/Appellees

Sherman & Howard L.L.C., Phoenix, By Craig A. Morgan, Shayna Stuart, and Jake T. Rapp, Counsel for Amicus Curiae Arizona Secretary of State Adrian Fontes

Davillier Law Group LLC, Phoenix, By Alexander Kolodin and Veronica Lucero, Counsel for Defendant/AppellantDavid Stevens

Blehm Law PLLC, Scottsdale, By Bryan James Blehm, Counsel for Defendants/Appellants Cochise County Board of SupervisorsTom Crosby, Ann English, and Peggy Judd

Judge Kellyauthored the opinion of the Court, in which Presiding Judge Brearcliffe and Judge Eckerstrom concurred.

KELLY, Judge:

¶1Cochise County Board of Supervisors members Tom Crosby, Ann English, and Peggy Judd, and Cochise County RecorderDavid Stevens("the County") appeal from the trial court's injunction barring an initial hand-count audit of all election-day ("precinct") and early ballots in Cochise County for the 2022 General Election.For the reasons that follow, we affirm.

Factual and Procedural Background

¶2 On October 24, 2022, the Cochise County Board of Supervisors("the Board") adopted a resolution requiring the County Recorder("the Recorder") to conduct "a hand-count audit of all county precincts for the 202[2] general election."On October 31, the Arizona Alliance for Retired Americans, Inc. and Stephani Stephenson("the AARA") filed a Petition for Writ of Mandamus, or in the Alternative Motion for Preliminary Injunction.The AARA asked the Cochise County Superior Court to (1) order the County to conduct hand-count audits of early ballots only in accordance with A.R.S. § 16-602 and the Arizona Secretary of State 2019 Elections Procedures Manual (EPM), which the parties agree is the current edition, and (2) preclude the County from conducting a hand-count audit of all early ballots.The court set an evidentiary hearing on the petition for November 4.

¶3 At the hearing, the Recorder answered, "[c]orrect," when asked whether he intended to conduct a hand-count audit on "every ballot, early or otherwise."On November 7, the trial court granted the AARA's petition, concluding that the Board had acted unlawfully by "ordering a full hand count" audit of both precinct ballots and early ballots.The court subsequently granted the AARA's request for attorney fees.The County timely appealed and we have jurisdiction to address the November 7 injunction pursuant to A.R.S. §§ 12-120.21(A)(1)and12-2101(A)(5)(b).¹

Discussion

¶4 The County challenges the trial court's judgment, reasserting on appeal that an initial hand-count audit of all votes cast in Cochise County is permissible under § 16-602 and the EPM."We review issues construing statutes and rules de novo."Ariz. Pub. Integrity All. v. Fontes , 250 Ariz. 58, ¶ 8, 475 P.3d 303(2020).

Mootness

¶5 The AARA asserts that the County's appeal is moot because the County's resolution was directed at the now-concluded 2022 General Election.However, we may consider a moot question where the issue is one "capable of repetition yet evading review."Phx. Newspapers, Inc. v. Molera , 200 Ariz. 457, ¶ 12, 27 P.3d 814(App.2001).This exception to the mootness doctrine typically applies where "time constraints" prevent an appellate court from deciding an issue that may recur.Cardoso v. Soldo , 230 Ariz. 614, ¶ 7, 277 P.3d 811(App.2012).Our supreme court has applied this exception where an election's occurrence initially rendered the issues moot, but the same issues were likely to recur in a future election.SeeFraternal Ord. of Police Lodge 2 v. Phx. Emp. Rels. Bd. , 133 Ariz. 126, 126-27, 650 P.2d 428(1982).Because the County has indicated that it intends to conduct "full" hand-count audits in future elections, this case presents the precise concerns that this exception was intended to address.Phx. Newspapers, Inc. , 200 Ariz. 457, ¶ 12, 27 P.3d 814.Therefore, we will decide this appeal on the merits.

Hand Count of Precinct Ballots

¶6We first examine whether the County has the discretion to perform a hand-count audit of all precinct ballots in the first instance, which requires us to interpret § 16-602.The goal of statutory interpretation is "to effectuate the legislature's intent."SolarCity Corp. v. Ariz. Dep't of Revenue , 243 Ariz. 477, ¶ 8, 413 P.3d 678(2018).The best evidence of that intent is the statute's plain language.Id .Furthermore, this court will "avoid an interpretation that makes ‘any language superfluous or redundant.’ "City of Tucson v. Clear Channel Outdoor, Inc. , 218 Ariz. 172, ¶ 33, 181 P.3d 219(App.2008)(quotingThomas & King, Inc. v. City of Phoenix , 208 Ariz. 203, ¶ 9, 92 P.3d 429(App.2004) ).

¶7 Although a full hand-count audit of electronically tabulated precinct ballots is ultimately provided for in § 16-602, the statute also prescribes specific criteria that must be satisfied first.An initial hand-count audit will include "[a]t least two percent of the precincts in that county, or two precincts, whichever is greater," which "shall be selected at random from a pool consisting of every precinct in that county."§ 16-602(B)(1).If this initial hand audit results in a vote difference in any race that is less than "the designated margin" of error² compared to the electronically tabulated ballot count, the hand audit ends and the electronic tabulation results constitute the official count for that race.§ 16-602(C).However, if the hand audit for any race results in a vote difference "equal to or greater than the designated margin," a second hand count of the same ballots will be performed.Id.If that second hand count also results in a difference in any race equal to or exceeding the designated margin, the hand count shall be expanded to include "a total of twice the original number of randomly selected precincts."Id.It is only thereafter, if the vote difference from the expanded count in any race is equal to or exceeds the designated margin, that "the final hand count shall be extended to include the entire jurisdiction for that race."§ 16-602(D).

¶8 The County argues that because § 16-602(B)(1) states that an initial hand-count audit must include "[a]t least two percent of the precincts in that county, or two precincts, whichever is greater ,"the statute's plain language gives the County discretion to audit a larger number of precincts—up to and including the entire jurisdiction—in the first instance (second emphasis added).The AARA disagrees, and during oral argument maintained that § 16-602(B)(1) ’s "at least two percent" language merely provides for a circumstance in which two percent of a county's precincts is more than two precincts, but less than a whole number of precincts.For example, the AARA argues, a county with 175 precincts would be required, in an initial hand audit, to count two percent or two precincts, whichever is greater.See§ 16-602(B)(1).Two percent of 175 precincts is 3.5 precincts.Because 3.5 is the greater number, but half a precinct cannot be audited in accordance with statutory procedures, the county would be required to hand-audit four precincts (2.29%) to comply with the "at least two percent" requirement, as three precincts would only equate to 1.71% of the total.The AARA's interpretation is correct.

¶9 When § 16-602(B)-(E) is viewed as a whole, a complete hand-count audit is permitted only after a multi-step process that includes conducting the preliminary and expanded audits described in § 16-602(C)-(D).Interpreting § 16-602(B)-(E) to allow a county to begin with a full hand-count audit of all precincts would render the statute's multi-step process superfluous.We will not interpret a statute in a manner that renders a provision superfluous.SeeClear Channel Outdoor, Inc. , 218 Ariz. 172, ¶ 33, 181 P.3d 219.Accordingly, the trial court correctly determined that the County is not authorized under Title 16 to conduct a hand-count audit of all precinct ballots in the first instance.

¶10 The County additionally asserts, for the first time on appeal, that Title 11(specificallyA.R.S. § 11-251(3) ) grants it "broad authority and discretion" in election matters, to include conducting an initial hand-count audit of every ballot cast, notwithstanding the language of § 16-602.³Generally, arguments raised for the first time on appeal are waived.Torres v. Jai Dining Servs. (Phx.), Inc.,253 Ariz. 66, ¶ 12, 508 P.3d 1148(App.2022).However, we may exercise discretion where, as here, consideration of an issue better serves the public.Id.¶ 13.

¶11 The County provided no legal authority for this position in its briefing, but at oral argument cited McDonald v. Cochise County , 37 Ariz. 90, 292 P. 603(1930) for support.In McDonald , our supreme court held that in the absence of statutory guidance, a county board of supervisors acting under a legislative grant of authority may prescribe certain election procedures.37 Ariz. at 101, 292 P. 603.However, and in contrast to McDonald , statutory authority under Title 16 establishes detailed procedures for conducting hand audits of electronically tabulated ballots.Because there is not an absence of statutory guidance here, but rather a detailed legislative scheme, neither Title 11 nor McDonald supports the County's position.

Hand Count of Early Ballots

¶12 The County also challenges the trial court's injunction preventing it from...