Huggins v. Superior Court In and For County of Navajo

Decision Date15 February 1990
Docket NumberNo. CV-88-0413-SA,CV-88-0413-SA
Citation788 P.2d 81,163 Ariz. 348
PartiesBret H. HUGGINS, Petitioner, v. The SUPERIOR COURT of the State of Arizona, in and for the COUNTY OF NAVAJO; and the Honorable Allen Minker, Judge of the Superior Court, Respondents, and Dale K. PATTON, Jr.; Navajo County, a body politic; the Navajo County Board of Supervisors; Sharon Keene, in her capacity as Clerk of the Navajo County Board of Supervisors; and The Navajo County Election Board, Respondents-Real Parties in Interest.
CourtArizona Supreme Court

Brown & Bain, P.A. by Paul F. Eckstein and David J. Bodney, Phoenix, for petitioner.

Magnum, Wall, Stoops & Warden by Charles H. Apt, Flagstaff, for real party in interest (Patton).

John Verkamp, Coconino County Atty. by Terence C. Hance, Chief Deputy County Atty., Flagstaff, for real parties in interest (Navajo County, Navajo County Bd. of Supervisors and Keene).

NOEL FIDEL, Vice Chief Judge, Court of Appeals.

In a contested primary election decided by an eight vote margin, sixteen illegal votes were cast. The loser claims in this petition for special action that the election must be set aside because one cannot know which of the candidates received the highest number of legal votes. We have taken jurisdiction to reexamine the law that governs elections when illegal votes exceed the margin of victory.


In the 1988 primary election for Navajo County Attorney, petitioner Bret H. Huggins narrowly lost the Democratic Party nomination to real party in interest Dale K. Patton. After conducting a recount pursuant to A.R.S. § 16-661, the Secretary of State reported that Patton had won by 3,593 votes to Huggins's 3,585. This eight-vote margin, however, was exceeded by sixteen votes illegally cast. Fifteen voters registered as independents or non-partisans had been improperly permitted to vote Democratic Party ballots. The sixteenth illegal voter was a convicted felon whose electoral rights were unrestored.

Huggins contested the election, as A.R.S. § 16-671 permits, but lost because he was unable to prove for whom the illegal votes were cast. Though he proved that illegal votes were cast in sufficient number to change the election result, he could not prove that they changed the result in fact. This special action arises from the trial court's rejection of Huggins's election challenge.

By order at the time this matter was submitted, we accepted jurisdiction but denied relief. We explain our ruling in this opinion.


A challenger's burden of proving how illegal votes were cast derives in Arizona from Morgan v. Board of Supervisors, 67 Ariz. 133, 192 P.2d 236 (1948), where this court quoted the following statement from C.J.S.:

Legality of votes. Where an election is contested on the ground of illegal voting, the contestant has the burden of showing that sufficient illegal votes were cast to change the result, and of showing for whom or for what they were cast.

67 Ariz. at 143, 192 P.2d at 243 (quoting 29 C.J.S., Elections, § 274) (emphasis added).

Only the first of the quoted burdens was material in Morgan. Because the Morgan challengers failed to prove sufficient illegal votes to change the election result, the court had no need to determine what, if any, further burden might have faced them. The Morgan dictum, however, became holding in Millet v. Board of Supervisors, 6 Ariz.App. 16, 429 P.2d 508 (1967), where the court of appeals rejected an election challenge by a contestant who, like Huggins, had carried the first burden, but not the second. 1

In this case, the trial court criticized, but felt obliged to follow, the Morgan- Millet rule. Huggins now urges us to abandon that rule and to relieve election contestants of the burden of proving how illegal votes were cast. Huggins directs us to Baggett v. State Election Board, 501 P.2d 817 (Okla.1972), where, under circumstances similar to these, the Oklahoma Supreme Court nullified an election, stating:

If election officials have not conducted an election according to law and knowingly permit non-registered Democrats to vote in a Democratic runoff primary election, the inexcusable conduct of the election officials should not inure to the benefit of any candidate either directly or indirectly.

Id. at 824. The trial court described Baggett as having "the force of reason behind it," and Huggins urges us to make the Oklahoma approach our own.

We too see much reason in Baggett. Like the majority in that case, we recognize the inequity of burdening the challenger "to prove for which candidate the unlawful ballots were cast [in order] to be relieved from having the illegal ballots counted as legal ballots." Id. Moreover, the challenger's burden increases with the size of the unlawful vote. As Huggins argues persuasively, "it hardly seems fair that as the amount of illegal voting escalates, the likelihood of redressing the wrong diminishes."

There are additional difficulties with the Morgan- Millet rule, which stem from the need to prove how illegal votes were cast through the testimony of those who cast them. First, as Justice Jackson pointed out in concurrence in Baggett, voters who have cast unlawful ballots may choose to assert their fifth amendment privilege not to testify. Id. at 825. The resulting exacerbation of the challenger's burden is even more pernicious than Justice Jackson described. Though an illegal voter might be motivated to maintain silence by a genuine fear of criminal sanctions, a supporter of the challenger's opponent might equally be motivated by the recognition that an invalid vote against the challenger would likely be cancelled only if the voter revealed how it was cast. Thus, the Morgan- Millet rule not only burdens a challenger onerously; it actually empowers partisans of the opposition to frustrate an election challenge and preserve illegal votes by exercising fifth amendment rights.

There is a second and related weakness to the Morgan- Millet rule. Voter disclosure testimony, even where offered, is highly suspect. Courts have long recognized this weakness when contemplating testimony by legal voters whose attempted votes were erroneously unrecorded. As the Utah Supreme Court stated:

We know from common experience that those who do vote are usually unwilling that the character of their votes be made public, and that whenever there is an investigation as to the actual vote cast it is almost certain to bring about prevarication and uncertainty as to what the truth is.... The temptation to actual fraud and corruption on the part of the candidates and their political supporters is never so great as when it is known precisely how many votes it will take to change the result....

Young v. Deming, 9 Utah 204, 212, 33 P. 818, 820-21 (1893); see also Briscoe v. Between Consol. School Dist., 171 Ga. 820, 824, 156 S.E. 654, 656 (1931) ("[I]t would ... be dangerous to receive and rely upon the subsequent statement of the voters as to their intentions, after it is ascertained precisely what effect their votes would have upon the result."); Babnew v. Linneman, 154 Ariz. 90, 93-94, 740 P.2d 511, 514-15 (App.1987) (same).

We concur in these comments and attribute comparable weakness to the testimony of illegal voters asked to disclose accomplished votes. See McCavitt v. Registrars of Voters, 385 Mass. 833, 849, 434 N.E.2d 620, 630-31 (1982).

There is a third and especially troublesome problem associated with the Morgan- Millet rule: the prospect of judges compelling good faith voters who have cast invalid ballots to reveal what they supposed were private votes. Division Two of the court of appeals has recently approved such compulsion in Babnew, 154 Ariz. at 95, 740 P.2d at 516 ("If a witness discloses that he did vote, and it is shown clearly to be an illegal vote, then he may be compelled to disclose for whom he voted."). The McCavitt opinion records the outrage of a voter so compelled: "I will not answer that question because, as far as I'm concerned, that is illegal. Nobody has the right to know who I voted for." 385 Mass. at 846 n. 16, 434 N.E.2d at 629 n. 16.

Massachusetts rejects compelling voter testimony in these circumstances as "a kind of inquisitorial power unknown to the principles of our government and constitution." Id. 434 N.E.2d at 630 (quoting Johnston v. Corp. of Charleston, 1 S.C.L. (1 Bay) 441 (1795)). The court continues: "We cannot sanction a result which tends to reduce citizen participation in the election process. That is too high a price to pay in a participatory democracy." McCavitt, 385 Mass. at 848, 434 N.E.2d at 630.

This criticism strikes a responsive chord in Arizona, where our constitution explicitly assures secrecy in voting. 2 We need not now determine whether, under any circumstances, our constitutional commitment to ballot secrecy might accommodate compelling good faith voters to disclose invalid votes. It is sufficient for present purposes to recognize the force of that commitment and to explore alternative solutions that permit us to avoid compulsion so offensive to democratic sensibilities and assumptions. See Clay v. Town of Gilbert, 160 Ariz. 335, 343, 773 P.2d 233, 241 (App.1989) (Fidel, J., concurring) (commending avoidance of "the democratic anathema of compelling good faith voters to reveal their votes").


The solution commended by Huggins is to nullify the contested election and to order a new election when, as here, a challenger has proven that the margin of victory is exceeded by the number of invalid votes. This solution, the one chosen in Baggett and McCavitt, permits the public a second effort to achieve a properly conducted election.

A second election, however, is not immune from illegal ballots and may prove no better than the first. Moreover, a second election is costly, and the costs are not limited to the heavy fiscal expense of running an election another time. Some votes will be lost in a second...

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