Citizens' Committee for Recall of Jack Williams v. Marston

• Decision Date: 01 March 1973
• Docket Number: No. 11128,11128
• Citation: 507 P.2d 113,109 Ariz. 188
• Parties: CITIZENS' COMMITTEE FOR the RECALL OF JACK WILLIAMS et al., Petitioners, v. Paul MARSTON et al., Respondents.
• Court: Arizona Supreme Court

Page 113

507 P.2d 113

109 Ariz. 188

CITIZENS' COMMITTEE FOR the RECALL OF JACK WILLIAMS et al., Petitioners, v. Paul MARSTON et al., Respondents.

No. 11128.

Supreme Court of Arizona, In Banc.

March 1, 1973.

James M. Rutkowski, Tolleson, Bruce Meyerson, Phoenix, for petitioners.

Gary K. Nelson, Atty. Gen., by James B. Feeley, Asst. Atty. Gen., Evans, Kitchel & Jenckes, P.C., by David Wm. West, Phoenix, for respondents.

CAMERON, Vice Chief Justice.

This is a petition for special action brought by the plaintiffs-petitioners from an order of the Superior Court dismissing the plaintiffs' complaint.

On appeal we are called upon to determine if the trial court abused its discretion in dismissing the action. Plaintiffs-petitioners specifically contend that they are entitled to a hearing and relief upon three questions:

1. Are the provisions of $16--103 and § 16--151 A.R.S., which provide for the canceling of the registration of all voters who failed to vote in the last election, unconstitutional as a violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution and Art. VIII, § 1 of the Arizona Constitution?

2. Does the application of § 16--151 A.R.S., canceling the registration of those who failed to vote in the last general election but who may wish to vote in a contemplated recall election, violate the equal protection clause of the Fourteenth Amendment of the United States Constitution?

3. May the county recorder be compelled to mail postcards (for re-registration) to those who have lost their registration by not voting prior to the 1 April date set by statute (§ 16--151(B) A.R.S.)?

The facts necessary for a determination of this matter are as follows. Plaintiffs' complaint alleges that the plaintiffs, Citizens' Committee for the Recall of Jack Williams, is 'a coalition of thirty (30) Arizona associations actively engaged in sponsoring, advertising and promoting the recall of Arizona Governor, Jack Williams.' The complaint further alleges that 'Frances Alvarez, John Vincent and Bernie Abeytia are three of some 213,751 residents of the State of Arizona who were properly registered to vote in the general election held 7 November 1972, but failed to vote in that election' and whose right to vote has been canceled pursuant to statute. They allege that they bring this action on their own behalf and on behalf of all Arizona residents who were properly registered to vote in the 7 November general election but who failed to do so.

The plaintiff committee contends that it has in its possession recall petitions containing substantially more than the minimum number of signatures required by Art. VIII, § 1 of the Arizona Constitution, A.R.S., and § 19--201 A.R.S. The complaint also alleged that the committee intended to file these petitions on or about 2 January 1973, though at the writing of this opinion this has not been done.

After the filing of the said complaint, the defendants moved to dismiss pursuant to Rule 12(b)(6), Rules of Civil Procedure, 16 A.R.S., on the basis that, '(1) There is no justiciable issue; and (2) no rights have been denied, as no action has been taken to the damage of any of the named Plaintiffs, nor have the Plaintiffs taken any action to cause any official of the State of Arizona to act.' The motion was argued before the respondent Superior Court judge who ordered: 'I am granting the motion because it is my feeling that the Court doesn't have jurisdiction.' Plaintiffs brought a petition for special action in this court and we took the matter under advisement pending a review

of the record made in the trial court. ARE §§ 16--103 and 16--151 A.R.S. UNCONSTITUTIONAL? § 16--151, Subsec. A A.R.S. provides:

'Following each general election the registration of an elector who did not vote in the general election of that year shall be canceled and removed from the general county register by the county recorder.'

§ 16--151, subsecs. B and C set forth the procedure whereby before 1 April following a general election the county recorders must give the non-voters removed by the procedures in subsec. A the opportunity to restore their registration by mail.

§ 16--103 A.R.S. provides:

'A person whose name appears on the general register of voters for the last preceding general state and county election and who has not been canceled out for failure to vote, or a person who voted in the last preceding general election for presidential electors only and has subsequently met the residency requirements for voting in all elections, or a person who has registered on or before the fiftieth day preceding a special primary, special general, special recall or other special election, shall, if otherwise qualified, be entitled to vote at any such special election authorized by law.'

The statutes further direct that those who did not vote at the last general election and had their registration canceled must do something--either re-register in person or, if they still reside at the same address, return the postcard which the statute, § 16--151, subsec. B A.R.S., requires that the recorder send to them for that purpose. Those who did exercise their right to vote in the last election are still registered and may vote without doing anything further.

Two three-judge federal courts have upheld the decennial cancellation without written notice of all voting registrations. Judge Craig, speaking for the court in one case, stated:

'The initial question we must decide is whether there has in fact been a significant encroachment on the right to vote. The answer is in the negative. No voter who re-registers will be denied or deprived of the right to vote. There are no changes in the qualifications of those who may re-register. The provision requiring all voters to re-register is the same type of provision that initially requires one to register when he becomes twenty-one or establishes residence in the county in order to become eligible to vote. * * *

'Plaintiffs further assert that the failure to provide adequate notice of the change in the law operates to discriminate, in addition to the less economically fortunate against ethnic minorities and the uneducated, because these groups are less aware of the necessity to re-register. It is, indeed, questionable that these groups have substantially less access to modern communication media. Moreover, with respect to these groups, the problem is no different with respect to the re-registration requirement than with respect to the original registration requirement. Unequal awareness is a sociological fact which is present whenever there is Any change in the law. Certainly every legislative act which has universal application to the entire citizenry is not pregnant with equal protection problems.

'Assuming the statute does result in some, albeit not significant, inconvenience to the lower income electorate, ethnic minorities and the uneducated, the Court is of the opinion, that there is a justified need for the legislation. Thus, the Court finds that the statute does not violate the equal protection clause.

'In the opinion of this Court, the decennial re-registration requirement of A.R.S. § 16--150(d), as amended, is a legitimate and necessary means of effectuating the state's interest in the purification of its electoral system.' Johnson v. Marston, No. CIV 70--352 PHX WEC, 27 November 1970, judgment affirmed by the United States Supreme Court, Johnson v. Marston, 401 U.S. 968, 91 S.Ct. 1216, 28 L.Ed.2d 320 (1971). See also Vinik v. Smyth, No. CIV 71--89 TUC WEC, 4 October 1971.

If the wholesale cancellation of all voters, including those who did vote in the last general election, can be upheld because of the state's interest in the purification of its election system, surely the cancellation of the registrations of those who have not voted at the last general election is not constitutionally infirm. The chances are greater that those who did not exercise the right to vote at the last general election had some legal impediment to their continued registration than those who did exercise that right. As to those still residing at their same place of residence, they need only return the postcard to keep their registration valid. As to those who have moved, they must re-register as they are required by law to do anyway, § 16--109 and § 16--110 A.R.S., and we do not find this burden constitutionally oppressive or discriminatory.

We therefore hold that the cancellation of the registration of voters who have failed to vote in the last election is not contrary to the Fourteenth Amendment of the United States Constitution or to the Constitution of the State of

Arizona. MUST THOSE WHO FAILED TO VOTE IN NOVEMBER 1972 BE ALLOWED TO VOTE IN THE RECALL ELECTION WITHOUT REREGISTRATION?

Having held as we have that the cancellation provisions of the Arizona statutes are constitutional and valid, it must follow that those whose registrations have been canceled because of their failure to exercise their right to vote, may not vote in the contemplated recall election until they have been re-registered by postcard or have re-registered themselves.

We see no constitutional reason for the court to direct that the county recorder deviate from existing law and keep on the registration rolls those voters who, for whatever reason, failed to vote in the last general election and have failed to return the postcard if they are still living at the same address, or have failed to re-register if ...