SUPREME COURT OF ARIZONA
SCOT MUSSI, et al., ) Arizona Supreme Court
) No. CV-22-0207-AP/EL
Plaintiffs/Appellants/Cross- )
Appellees, ) Maricopa County
) Superior Court
v. ) No. CV2022-009391
)
KATIE HOBBS, in her capacity as )
the Secretary of State of )
Arizona, )
)
Defendant/Appellee, )
)
ARIZONANS FOR FREE AND FAIR )
ELECTIONS (ADRC ACTION), a )
political committee, )
)
Real Party in Interest/Appellant. )
) FILED: 08/24/2022
)
__________________________________)
DECISION ORDER
Before the Court is an expedited election appeal regarding an
initiative sponsored by Arizonans for Free and Fair Elections (ADRC
Action)(the “Committee”) (Serial No. I-16-2022), a proposed
initiative for the November 8, 2022 General Election. The Act relates
to voting rights, campaign finance, citizen measures, and lobbyist
regulation.
The Court, en banc, has considered the briefs and authorities in
this appeal, the record, the trial court’s ruling, and the relevant
Arizona Supreme Court Case No. CV-22-0207-AP/EL
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statutes and case law in this expedited election matter. 1 The Court
decides these issues unanimously.
Plaintiffs/Appellants Scot Mussi, et al., raise three issues in
their appeal of the trial court decision.
First, the trial court considered Plaintiffs’ Objection 3, which
contended that circulators were required to submit a sworn affidavit
with each new registration.
The Court finds that A.R.S. § 19-118 does require each
circulator to submit a separate affidavit as one of five required
items in each registration application submitted for each petition he
or she circulates. But any circulators’ lack of compliance with
§ 19-118 does not invalidate the signatures gathered by these
circulators on the record and circumstances before us.
The Circulator Portal established by the Secretary of State’s
Office (SOS), which was in operation at the time the Governor and the
Attorney General approved the 2019 Elections Procedures Manual
pursuant to A.R.S. § 16-452, by design does not permit the submission
of more than one affidavit per circulator. See Declaration of Kori
Lorick 5. By also refusing to accept manual submission of a hard
copy affidavit, see id. at 3, the SOS rendered it impossible for
circulators to successfully submit a registration application as
required by § 19-118 for I-16-2022 if they had already registered to
1 Justice Bolick did not participate in the consideration of this
matter.
Arizona Supreme Court Case No. CV-22-0207-AP/EL
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circulate other petitions.
The Court declines to find that the Committee or any individual
circulator failed to comply with § 19-118 when the SOS has prevented
such compliance. A finding of non-compliance and disqualification of
circulator signatures on this record and under these circumstances
would “unreasonably hinder or restrict” the exercise of the
initiative power under article 4, part 1, sections (1) and (2) of the
Arizona Constitution. Stanwitz v. Reagan, 245 Ariz. 344, 348 ¶ 14
(2018), as amended (Nov. 27, 2018) (citation omitted) (internal
quotation marks omitted). Therefore, signatures collected by such
circulators in connection with I-16-2022 are not subject to
disqualification.
As we indicated in our other decisions today, we anticipate that
the SOS will remedy deficiencies in the submission of information
through the Circulator Portal and accommodate the manual submission
of required information in the interim. However, if an initiative
committee seeks to submit the information required pursuant to § 19-
118 and the SOS refuses to accept it, an aggrieved party should seek
special action relief.
IT IS ORDERED affirming the trial court’s ruling that no
petition sheets will be invalidated under Objection 3.
Second, Plaintiffs challenge the trial court ruling on Objection
4(a) and 4(b) and contend that a circulator’s petition sheets should
be disqualified where the residential address under A.R.S. § 19-
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118(B)(1) does not include a unit number.
The Court further finds that § 19-118(B)(1) does not require a
circulator residing in a multi-unit structure to provide a unit
number in connection with a residence address. Therefore,
circulators who did not supply a unit number nonetheless complied
with the statute.
IT IS FURTHER ORDERED affirming the trial court rulings on
Objections 4(a) and (b).
Third, Plaintiffs challenge the trial court rulings that no unit
number is needed in the “Service of Process Address (within State of
Arizona)” line, which was Objection 6(a). The Court concludes that
under A.R.S. § 19-118(B)(4), there must be sufficient information on
the registration to enable an organizing committee to receive
certified mail. This requires the complete mailing address, including
a unit or suite number, if applicable. Therefore,
IT IS FURTHER ORDERED remanding to the trial court to invalidate
the petition signatures under Objection 6(a).
The Committee raises five issues in its cross-appeal.
First, the Committee argues that the circulators registered with
the Secretary, and the Secretary approved the registration
applications, and no further inquiry is necessary. The Court
concludes that courts can determine whether the Committee and
circulators have complied with the law and strike the petition sheets
where they have not.
Arizona Supreme Court Case No. CV-22-0207-AP/EL
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Second, the Committee argues that Objection 5(b) (using a
nonresidential address for a temporary address) should not invalidate
a registration application because the statute does not require a
temporary address. The Court agrees that there is no statutory
requirement to provide a temporary address and therefore there is no
statutory violation. Therefore,
IT IS FURTHER ORDERED remanding to the trial court to
rehabilitate the petition sheets disqualified under Objection 5(b).
Third, the Committee argues that Objection 5(c) (incorrect phone
number on registration form) should not invalidate a registration
application because there is no prohibition against changing
telephone numbers. Circulators are required to provide a correct
telephone number at the time they submit their registration
application. The parties stipulated to the number of circulators who
included incorrect telephone numbers when the registration
applications were submitted. Therefore,
IT IS FURTHER ORDERED remanding to the trial court to determine
if the resolution of the 5(c) Objection was in accordance with the
parties’ stipulation.
Fourth, the Committee argues that Objection 5(e) (circulators’
address on petition sheets does not match address on the registration
application) should not invalidate the circulators’ petitions. The
Court agrees that there is no statutory requirement that the address
on the circulator’s affidavit be the same address as the address in
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the registration. However, the parties stipulated to the number of
circulators who submitted incorrect addresses.
IT IS FURTHER ORDERED remanding to the trial court to effectuate
the parties’ stipulation regarding Objection 5(e).
Finally, the Committee argues that signatures referenced in
Objection 6(b) (where the circulator used a service address that is
not the Committee’s Address) should not be invalidated. The
circulator is required to list “The address of the committee in this
state for which the circulator is gathering signatures and at which
the circulator will accept service of process related to dispute
concerning circulation of that circulator’s petitions.” (Emphasis
added.)
The Court concludes that the registration application must
include the organizing committee’s address for service of process as
required in (B)(4). Therefore,
IT IS FURTHER ORDERED affirming the trial court ruling on
Objection 6(b).
IT IS FURTHER ORDERED denying the parties’ requests for attorney
fees as there is no prevailing party. See § 19-118(F).
[A written Opinion detailing the Court’s reasoning will follow in due
course.]
DATED this 24th day of August, 2022.
_______/s/________________
ROBERT BRUTINEL
Chief Justice
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TO:
Kory A Langhofer
Thomas J Basile
Amy B Chan
Noah Gabrielsen
James E Barton II
Jacqueline Soto
Joshua David Rothenberg Bendor
Joshua J. Messer
Travis Charles Hunt
Hon. Joseph P Mikitish
Hon. Jeff Fine
Alberto Rodriguez
Roy Herrera
Daniel A Arellano
Dominic Emil Draye
Michael G Bailey