SUPREME COURT OF ARIZONA
LORENZA MARTINEZ, an Individual ) Arizona Supreme Court
and a Qualified Elector of LD ) No. CV-22-0101-AP/EL
16; et al., )
) Maricopa County
Plaintiffs/Appellees, ) Superior Court
) No. CV2022-004883
v. )
) FILED 5/9/2022
DANIEL WOOD, an Individual, )
)
Defendant/Appellant. )
__________________________________)
DECISION ORDER
Pending before the Court is an expedited election appeal brought
by Appellant Daniel Wood, a Republican candidate for State Senator in
Legislative District 16.
The Court, by a panel consisting of Chief Justice Brutinel,
Justice Bolick, Justice Montgomery, and Justice King, considered the
briefs of the parties, the certified transcript, the trial court’s
rulings, and the relevant statutes and case law in this expedited
election matter.
Candidates seeking placement on a partisan primary election
ballot must gather a sufficient number of signatures in nomination
petitions from “qualified signers.” A.R.S. § 16-322(A). A “qualified
signer” is a person “who at the time of signing is a registered voter
in the electoral district of the office the candidate is seeking” and
is registered as a member of the candidate’s party, a party not
entitled to continued representation on the ballot, or an
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independent. A.R.S. § 16-321(B),(F). “The way the [signer’s] name
appears on the [candidate’s nomination] petition shall be the name
used in determining the validity of the name for any legal purpose,”
and “[s]ignature and handwriting comparisons may be made.” A.R.S. §
16-321 (D).
Appellee Martinez challenged the legal sufficiency of
Appellant’s nomination petition and signatures. As a candidate,
Appellant was required to have 492 valid signatures to be placed on
the ballot. He submitted petition sheets with 875 signatures.
Appellee challenged the validity of 486 of the individual signatures
(all from Pinal County) submitted by Appellant. The Pinal County
Recorder determined that 430 signatures were invalid. The trial
court adopted the Pinal County Recorder’s determinations as to 428
signatures. Specifically, 2 signatures were invalid because they
were duplicates; 1 signature was only a first name; 18 signatures
were invalid because the signer was registered with the incorrect
party; 6 signatures were invalid because the signer was registered as
a “federal only” voter; 82 signatures were invalid because the signer
was not registered to vote; and 319 signatures were invalid because
the signer was not registered to vote in Legislative 16 (post-
redistricting) or the previous Legislative District 11 (pre-
redistricting). At most, Appellant had 447 valid signatures, which
was 45 signatures short of the minimum required number of signatures.
Appellant timely appealed.
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Motion to Dismiss: Appellant moved to dismiss the action below,
arguing that Appellee failed to comply with the service of process
requirements set forth in A.R.S. § 16-351(D), although Appellant did
not dispute that he had timely notice of the proceeding. The trial
court denied the motion.
The officer with whom the candidate files the nomination paper
and petitions is statutorily appointed as that candidate's agent to
receive service of process for any challenge to the nomination
petitions. A.R.S. § 16–351(D). Upon receipt of process, the agent
must immediately mail it to the candidate and notify the candidate by
telephone that the action was filed. This Court has upheld the
statutory service and notice requirements for nomination petition
challenges. See Malnar v. Joice, 236 Ariz. 170, 171–72 ¶ 6 (2014)
(rejecting the argument that the court lacked jurisdiction over the
candidate where the filing officer had been duly served); see also
Graham v. Tamburri, 240 Ariz. 126, 130 ¶ 9 (2016) (holding that
Apache County defendants had been properly served through service on
the Secretary of State). The trial court correctly denied the motion
to dismiss.
Number of signatures required: Appellant claims that the
Appellee never established the number of signatures required and
contends that the 492 number is unsubstantiated.
At trial, the State Elections Director for the Arizona Secretary
of State explained that there are two potential measures to calculate
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the minimum number of signatures required: 1) the standard math
equation to calculate the minimum number of nomination petition
signatures found in A.R.S. § 16-322(A)(2) (“at least one-half of one
percent . . . of the total number of qualified signers in the
district”); and 2) the temporary process outlined in H.B. 2839, a
session law that provided candidates the benefit of complying with an
alternative (and in this case, lower) signature threshold based on
the average number of petition signatures needed across all
legislative districts for a particular political party. H.B. 2839, §
2(C). (55th Legislature, 2nd Reg. Sess.) (2022). The testimony
confirmed the number of necessary signatures; the Secretary of State
posted the number which was readily available as public information;
and Appellant made no challenge to the 492 number before the
nomination petition challenge. The Court rejects the contention that
there was any uncertainty regarding the number of signatures that
were required.
Sufficiency of the evidence: Appellant generally challenges the
sufficiency of the evidence to disqualify the signatures.
This Court “review[s] de novo whether ‘a petition substantially
complies with the statutory requirements’ before denying access to a
ballot.’” McKenna v. Soto, 250 Ariz. 469, 471 (quoting Bee v. Day,
218 Ariz. 505, 507 ¶ 7 (2008)). In doing so, the Court defers to the
trial court’s factual findings, unless clearly erroneous as not
either supported by reasonable evidence or based on a reasonable
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conflict of evidence. Moreno v. Jones, 213 Ariz. 94, 98 (2006). In
examining whether the trial court’s findings of facts are clearly
erroneous, this Court only considers the evidence presented to the
trial court, i.e., the evidence in the record. See Shooter v. Farmer,
235 Ariz. 199, 200–01 ¶¶ 4–5 (2014); Schaefer v. Murphey, 131 Ariz.
295, 299 (1982) (“As an appellate court, we are confined to reviewing
only those matters contained in the record.”); ARCAP 11(a)(1) (“The
official record, which consists of documents . . . filed in the
superior court before and including the effective date of the filing
of a notice of appeal”).
Initiating a challenge and burden: An elector can challenge the
validity of the signatures in a candidate’s nomination petition.
A.R.S. § 16-351(A). A candidate’s signatures are presumed valid, but
the challenger can displace this presumption with a prima facie
showing that a signer is not a qualified signer. Jenkins v. Hale, 218
Ariz. 561, 565–66 ¶ 23 (2008). If the presumption of validity is
displaced, “the burden shifts to the proponent of the signatures to
[rehabilitate the signature and] prove the signer was a qualified
elector and eligible to sign the petition.” McKenna, 250 Ariz. at 473
¶ 18.
By statute, “[t]he county recorder or other officer in charge of
elections shall perform petition signature verifications for
nomination petition challenges for signatures of qualified electors
who are residents of that county and shall provide testimony and
Arizona Supreme Court No. CV-22-0101-AP/EL
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other evidence on request of any of the parties to the challenge.”
A.R.S. § 16-351(E).
In this case, Appellee’s complaint set forth the challenged
signatures and the basis for the challenges, and a representative
from the Pinal County Recorder’s office testified that a substantial
number of the challenged signatures were invalid.
Appellant did not contest the Recorder’s findings regarding
invalid signatures, but instead generally challenged the validity of
the voter rolls. However, “[t]he most current version of the general
county register at the time of filing of a court action challenging a
nomination petition constitutes the official record to be used” in
examining whether a signer was properly registered at the time of
signing. A.R.S. § 16-351(F). Here, testimony established the use of
the general county register to determine if the signatures were
valid.
Due process: Appellant generally challenges the expedited
proceedings and certain evidentiary rulings. He generally claims that
he was deprived of the ability to utilize E-Qual to obtain online
signatures, but does not allege that any voter was deprived of an
opportunity to sign a petition. He objects to certain aspects of the
trial court proceeding, although he did not raise these objections to
the trial court. He claims that nomination petition challenges that
place too much of a burden on the candidate are unconstitutional,
citing Bullock v. Carter, 405 U.S. 134, 92 S. Ct. 849, 31 L. Ed. 2d
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92 (1972). However, in that case the U.S. Supreme Court disapproved
of a nomination procedure that required as much as $8,900 in filing
fees.
Members of the Panel are familiar with the rigorous process to
seek placement on a primary ballot. Although the Court is sympathetic
to the difficulties experienced by unrepresented candidates facing
nomination-petition challenges, here, Appellant is unable to
establish that he was deprived of the ability to rehabilitate invalid
signatures. The Court finds no due process violation.
Attorneys’ fees: Appellee seeks attorneys’ fees pursuant to
A.R.S. § 12-349. Appellant seeks attorneys’ fees under the attorney
general doctrine. Under A.R.S. § 12-349, the court shall award fees
if it finds that an attorney or party “1. Brings or defends a claim
without substantial justification[;] 2. Brings or defends a claim
solely or primarily for delay or harassment[;] [or] 3. Unreasonably
expands or delays the proceeding.” Appellant did not prevail.
However, Appellant was statutorily afforded the opportunity to defend
the challenge and to pursue this appeal. Appellee cites no authority
for the proposition that in so doing, Appellant’s actions fell within
the statute and the Court finds no basis to award fees under the
statute.
IT IS ORDERED affirming the trial court decision.
IT IS FURTHER ORDERED granting the injunction and enjoining the
Maricopa, Pima and Pinal County Supervisors, Recorders and Elections
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Directors from placing Daniel Wood’s name on the Republican Primary
Ballot for State Senator of Legislative District 16.
IT IS FURTHER ORDERED the parties’ requests for fees are denied.
DATED this 9th day of May, 2022.
_____/s/______________________
ROBERT BRUTINEL
Chief Justice
TO:
Eric H Spencer
Ian R Joyce
Amy B Chan
Joshua David Rothenberg Bendor
John S. Bullock
Joseph Eugene La Rue
Joseph Branco
Karen J Hartman-Tellez
Daniel S Jurkowitz
Ellen Ridge Brown
Javier Adalberto Gherna
Christopher C Keller
Craig C Cameron
Allen Hatch Quist
Scott Matthew Johnson
James I Mitchell
Daniel Wood
Hon. John R Hannah Jr
Alberto Rodriguez
Alicia Moffatt
Hon. Jeff Fine