Open Primary Elections Now v. Bayless

Decision Date10 December 1998
Docket NumberNo. CV-98-0412-AP,CV-98-0412-AP
Citation193 Ariz. 43,969 P.2d 649
Parties, 284 Ariz. Adv. Rep. 13 OPEN PRIMARY ELECTIONS NOW, a political committee registered with the Arizona Secretary of State; and Grant Woods, Paul Johnson, Richard Mayol and Kathy Thompson, individuals, Plaintiffs-Appellants, v. Betsey BAYLESS, Secretary of State of Arizona, in her official capacity; Candace C. Owens, Coconino County Recorder; Linda Haught Ortega, Gila County Recorder; Helen Purcell, Maricopa County Recorder; and Patsy Jenney-Colon, Yavapai County Recorder, in their official capacities, Real Parties in Interest; Board Of Supervisors of Apache County; Board of Supervisors of Cochise County; Board of Supervisors of Coconino County; Board of supervisors of Gila County; Board of Supervisors of Graham County; Board of Supervisors of Greenlee County; Board of Supervisors of La Paz County; Board of Supervisors of Mohave County; Board of Supervisors of Maricopa County; Board of Supervisors of Navajo County; Board of Supervisors of Pima County; Board of Supervisors of Pinal County; Board of Supervisors of Santa Cruz County; Board of Supervisors of Yavapai County; And Board of Supervisors of Yuma County, Defendants-Appellees, David Crete and Tom Head, Intervenor-Defendants-Appellees.
CourtArizona Supreme Court

Brown & Bain, P.A. by Paul F. Eckstein, Timothy A. Nelson and Dan L. Bagatell, Phoenix, Attorneys for Appellants.

Gallagher & Kennedy, P.A. by John E. Lundin, Elliot Talenfeld and Jeffrey D. Gross, Phoenix, Attorneys for Appellee Betsey Bayless, Secretary of State.

Richard M. Romley, Maricopa County Attorney by Jill M. Kennedy, Deputy County Attorney, Phoenix, Attorneys for Maricopa County Board of Supervisors, Helen Purcell, Maricopa County Recorder, Candace C. Owens, Coconino County Recorder, and Coconino County Board of Supervisors.

Miller LaSota & Peters, PLC, by Donald M. Peters, Phoenix, Attorneys for David Crete and Tom Head.

Lisa T. Hauser, Scottsdale, Attorney for David Crete and Tom Head.

McGREGOR, Justice.

¶1 On August 17, 1998, the Secretary of State, relying in part upon her rejection of signatures obtained by a petition circulator whom the Gila County Recorder (County Recorder) had disqualified, declared that Proposition 106, the Open Primary Initiative, lacked sufficient valid signatures to permit placing the initiative on the November 1998 general election ballot. Appellants attempted to challenge that decision by filing an action in superior court. We hold that appellants' action was untimely because they failed to file it within the ten-day time limit defined by Arizona Revised Statutes (A.R.S.) § 19-121.03 (Supp.1998).


¶2 On July 2, 1998, Open Primary Elections Now (O.P.E.N.) filed petitions in support of an initiative intended to amend the state constitution to permit electors to vote in any primary election, regardless of party affiliation. As required by statute, the Secretary of State initiated the process required to determine whether sufficient valid signatures supported the petition. See A.R.S. §§ 19-121.01 through 19-121.04. Although the process for determining whether an initiative qualifies to appear on the ballot involves several steps, this appeal concerns only the requirement that county recorders validate the signatures of petition circulators and the effect of a county recorder's decision to disqualify a circulator. 1 See A.R.S. § 19-121.02.

¶3 As part of the statutorily-mandated process for projecting the number of valid signatures submitted in support of initiative petitions, the Secretary of State sends to each county recorder a random sample of signature sheets verified by circulators who claim to be qualified electors of that county. See A.R.S. § 19-121.01.C. If any circulator obtained signatures in counties other than his or her home county, the Secretary of State also sends the county recorder a randomly selected out-of-county signature sheet to compare with the circulator's voter registration card. See id.

¶4 In this case, the Secretary of State forwarded to the Gila County Recorder the affidavits of those circulators who indicated they were registered to vote in Gila County, including affidavits from a circulator named Kathy Thompson. When the County Recorder compared Ms. Thompson's affidavit signatures with that on her voter registration card, the signatures did not match. 2

¶5 Acting pursuant to A.R.S. §§ 19-121.01 and 19-121.02, the County Recorder certified to the Secretary of State the number of circulators found not to be qualified electors in Gila County and therefore ineligible to act as circulators. The County Recorder's certification disqualified Ms. Thompson as a circulator, as to petitions circulated both within and outside Gila County. Worksheet C, attached to the certification, identified Ms. Thompson as a circulator "found not to be [a] qualified elector[ ] during the time of circulating the petition and [ ] therefore ineligible to act as [a] circulator [ ]." The certification form explained that "[s]ignatures contained on petitions circulated by ineligible out of county circulators will be removed by the Secretary of State's office." A mailing certificate placed on the face of the certification indicated that the County Recorder mailed a copy of the document to the co-chairs of the political committee supporting the petition on July 31, 1998. The Secretary of State received the certification on August 3, 1998.

¶6 Relying upon the County Recorder's certification, the Secretary of State rejected 1,563 signatures obtained by Ms. Thompson outside Gila County. When the Secretary of State combined that number with the signatures rejected on other grounds, the remaining valid signatures fell below the minimum threshold established by A.R.S. § 19-121.04.D. 3 The Secretary of State therefore rejected the initiative on August 17, 1998.

¶7 Appellants filed this action against the Secretary of State and County Recorder on August 21, 1998, raising several issues. 4 Intervenors, arguing that appellants' action was untimely, moved for summary judgment on September 3, 1998. The trial judge determined that "[a]ny claims concerning the certifications made by county recorders, and consequential subtraction from the total number of eligible signatures, are barred because they were not challenged within ten days of the receipt thereof by the secretary of state, pursuant to A.R.S. § 19-121.03(B)." Finding no just reason for delay, the judge entered judgment in favor of the Secretary of State and County Recorder. Appellants timely appealed.

¶8 We accepted this matter on direct appeal. See Ariz. Const. art. 6, § 5(3) and A.R.S. § 19-121.03.B. Following oral argument, we entered an order affirming the trial court's judgment. This opinion explains our order.


¶9 Arizona's election statutes direct that, to challenge a county recorder's certification, a citizen must file an action in the superior court within ten days after the Secretary of State receives the certification. See A.R.S. § 19-121.03. Appellants, conceding they did not file this action within ten days after the Secretary of State received the certification that disqualified Ms. Thompson, argue their challenge actually is not to the certification. Rather, they argue, on August 17, 1998, the Secretary of State independently determined that Ms. Thompson was not an eligible circulator, and it is that independent determination that they challenge. Because election contests are statutory proceedings, we evaluate appellants' argument by considering the applicable statutory scheme. We resolve questions of law involving statutory construction de novo. See Canon School Dist. v. W.E.S. Constr. Co., 177 Ariz. 526, 529, 869 P.2d 500, 503 (1994).

¶10 The plain language of the election statutes provides no support for appellants' position. Responsibility for determining whether the signature of a petition circulator corresponds with the circulator's voter registration signature rests solely with the county recorders. See A.R.S. § 19-121.02. Once a county recorder disqualifies a circulator, the county recorder must certify to the Secretary of State the name of the disqualified circulator. See A.R.S. § 19-121.02.C.4. The statutory scheme then mandates that the Secretary of State "determine the total number of valid signatures by subtracting from the total number of eligible signatures ... [a]ll signatures obtained by unqualified circulators...." A.R.S. § 19-121.04.A.1. The legislature gave the Secretary of State no discretion on this point: she must subtract those signatures obtained by a circulator whom a county recorder disqualifies. The County Recorder's July 31, 1998 certification disqualifying Ms. Thompson, therefore, determined that signatures obtained by her could not be counted by the Secretary of State. If any error occurred, it occurred when the County Recorder disqualified Ms. Thompson, not when the Secretary of State acted in compliance with the statutory mandate. Appellants could have challenged the County Recorder's certification, but they were required to utilize the procedure provided by the Legislature and file their action within the ten-day limit mandated by A.R.S. § 19-121.03.

¶11 Appellants' argument that enforcing the ten-day limit for challenging the County Recorder's certification effectively left them without a remedy is puzzling. Had appellants filed a timely action, they would have received full opportunity to present evidence to the trial court that Ms....

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