Franklin Bruce Ross v. Ken Bennett

SUPREME COURT OF ARIZONA
En Banc

FRANKLIN BRUCE ROSS, ) Arizona Supreme Court
) No. CV-11-0264-T/AP
Petitioner/Appellant, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CV 11-0503 EL
KEN BENNETT, in his official )
capacity as Secretary of State ) Maricopa County
for the State of Arizona; THE ) Superior Court
BOARD OF SUPERVISORS OF MARICOPA ) No. CV2011-011864
COUNTY; HELEN PURCELL, in her )
official capacity as Maricopa )
County Recorder; and KAREN )
OSBORNE, in her official ) O P I N I O N
capacity as Maricopa County )
Elections Director, )
)
Respondents/Appellees, )
)
and )
)
CITIZENS FOR A BETTER ARIZONA IN )
SUPPORT OF RC-04-2011, )
)
Real Party in Interest/ )
Appellee. )
_________________________________ )

Appeal from the Superior Court in Maricopa County
The Honorable Hugh E. Hegyi, Judge

AFFIRMED
________________________________________________________________

Appeal to the Court of Appeals, Division One

TRANSFERRED
________________________________________________________________

GAMMAGE & BURNHAM, P.L.C. Phoenix
By Lisa T. Hauser
Attorneys for Franklin Bruce Ross
THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By James E. Barton, II, Assistant Attorney General
Thomas M. Collins, Assistant Attorney General
Attorneys for Ken Bennett

WILLIAM G. MONTGOMERY, MARICOPA COUNTY ATTORNEY Phoenix
By M. Colleen Connor, Deputy County Attorney
J. Scott Dutcher, Deputy County Attorney
Attorneys for Maricopa County Board of Supervisors,
Helen Purcell, and Karen Osborne

LAW OFFICE OF THOMAS M. RYAN Chandler
By Thomas M. Ryan
Attorney for Citizens for a Better Arizona in
Support of RC-04-2011
________________________________________________________________

B E R C H, Chief Justice

¶1 On July 12, 2011, Governor Janice K. Brewer ordered a

special election for the recall of State Senator Russell Pearce.

On September 13, 2011, this Court affirmed the trial court’s

order refusing to enjoin the election. This opinion explains

our earlier order.

I. FACTS AND PROCEDURAL BACKGROUND

¶2 On January 31, 2011, Citizens for a Better Arizona

(“CBA”) filed an application with Secretary of State Ken Bennett

seeking to recall Senator Pearce, who represents Legislative

District 18 in the Arizona Senate.

¶3 CBA eventually submitted a recall petition containing

18,315 signatures for certification. Secretary Bennett found

1,381 signatures ineligible and submitted the remaining 16,934

signatures to Maricopa County Recorder Helen Purcell for

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certification. She, in turn, struck an additional 6,569

signatures and transmitted the remaining 10,365 certified

signatures to Secretary Bennett. After determining that the

recall petition contained more signatures than the 7,756

required, Secretary Bennett filed the petition with the

Governor’s office.1 On July 12, 2011, Governor Brewer ordered a

special recall election for November 8, 2011.

¶4 Six days after the Governor’s order, Franklin Bruce

Ross, a District 18 elector, filed suit to enjoin the recall

election, alleging that the recall petition failed to meet

constitutional and statutory requirements. After considering

the defendants’ motions to dismiss the complaint and Ross’s

motion for partial summary judgment, the superior court entered

judgment for the defendants.

¶5 Ross appealed. We granted the parties’ requests to

transfer the case from the court of appeals because Ross seeks

the overruling of an opinion of this Court. See ARCAP 19. We

have jurisdiction pursuant to Article 6, Section 5, Clause 3, of

the Arizona Constitution.

II. DISCUSSION

¶6 The resolution of this case depends on the

interpretation of constitutional and statutory provisions, which

1
On July 18, 2011, County Recorder Purcell issued a revised
certification that reduced the number of valid signatures to
10,296, still far exceeding the 7,756 required for the recall.
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are issues of law that we review de novo. Duncan v. Scottsdale

Med. Imaging, Ltd., 205 Ariz. 306, 308 ¶ 2, 70 P.3d 435, 437

(2003).

A. The Public’s Right to Recall

¶7 The Arizona Constitution guarantees the people the

right to recall public officers who hold elective offices.

Ariz. Const. art. 8, pt. 1, § 1. Although the recall procedure

has been used rarely, recall was an important issue during the

Constitutional Convention of 1910. See The Records of the

Arizona Constitutional Convention of 1910 [hereinafter Records]

241-46, 259-70, 802-12, 919-22, 925-29 (John Goff ed., 1991).

Sentiment favoring recall was so strong that the framers

included in the constitution a recall provision for all public

officers, despite well-placed fears that President Taft would

not approve statehood if the recall provision applied to the

judiciary. See id. at 920, 926, 1418; Letter from President

William H. Taft to the U.S. H.R. (Aug. 15, 1911) (reprinted in

Toni McClory, Understanding the Arizona Constitution 193-99 (2d

ed. 2010)). The President eventually approved Arizona’s bid for

statehood, but only on the condition that the framers exempt

judges from the recall provision. Letter to U.S. H.R.

Arizonans acquiesced to the President’s request, but less than

one year later, they overwhelmingly voted to amend the

constitution to once again subject all public officers to

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recall. See Ariz. Const. art. 8, pt. 1, § 1. This broad recall

provision remains in force today. Id.; see also Ariz. Rev.

Stat. (“A.R.S.”) § 19-201(A) (Supp. 2011) (implementing

constitutional recall provision).

¶8 Given this history, this Court has interpreted

constitutional and statutory provisions governing recall

liberally to protect the public’s right to recall its officials.

See Pacuilla v. Cochise Cnty. Bd. of Supervisors, 186 Ariz. 367,

368, 923 P.2d 833, 834 (1996); Johnson v. Maehling, 123 Ariz.

15, 18, 597 P.2d 1, 4 (1979); Abbey v. Green, 28 Ariz. 53, 72-

74, 235 P. 150, 157 (1925).

B. CBA’s Recall Petition

¶9 Ross argues that CBA’s recall petition fails to satisfy

the constitutional and statutory requirements governing the

recall process. We address each of Ross’s arguments in turn.

1. The “substantial compliance” standard

¶10 To be eligible for certification, recall petitions must

“substantially comply” with the constitutional and statutory

framework. This Court first announced this standard in 1925 in

Abbey v. Green, 28 Ariz. at 74, 235 P. at 157. Ross urges us to

abandon Abbey and reject its 86-year-old substantial compliance

standard in favor of the “strict compliance” standard more

recently applied to referendum petitions. See W. Devcor, Inc.

v. City of Scottsdale, 168 Ariz. 426, 428, 814 P.2d 767, 769

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(1991); Cottonwood Dev. v. Foothills Area Coal. of Tucson, Inc.,

134 Ariz. 46, 49, 653 P.2d 694, 697 (1982). We decline the

invitation.

¶11 In Abbey, a superior court judge sought to set aside a

recall election removing him from office, on the grounds that

the recall petition failed to comply with several statutory

provisions. 28 Ariz. at 62, 235 P. at 153. Although we

concluded that the petition suffered from some technical

deficiencies, we nonetheless found it “in substantial compliance

with the law” and upheld the election. Id. at 74, 235 P. at

157.

¶12 Among other things, the judge complained that some

petition signers did not list full addresses, despite

constitutional and statutory mandates that each signer list a

“residence.” Id. at 63, 235 P. at 154. We found strict

compliance unnecessary because several towns did not use house

numbers at that time. Id. The residence requirement was

imposed to help the county recorder identify petition signers.

Because the recorder could otherwise identify signers, we found

no reason to invalidate the signatures for not listing house

numbers. Id. at 63-64, 235 P. at 154.

¶13 We also rejected the judge’s claim that the petition

was defective because each petition sheet did not include a

statement of the grounds for recall. Id. at 62, 235 P. at 153.

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Because the constitution contemplates multiple petition sheets,

see Ariz. Const. art. 8, pt. 1, § 2, and the petition stated

grounds on at least one sheet, we concluded that restating it on

each sheet was unnecessary, Abbey, 28 Ariz. at 62, 235 P. at

153.

¶14 Finally, we rejected the judge’s claim that the stated

grounds for recall were “scandalous and impertinent.” Id. at

57, 235 P. at 152. We observed that the recall process was

political – not judicial – and it was the electorate’s

prerogative to remove an “officer with whom, for any or no

reason whatever for that matter, they may have become

displeased.” Id. at 63, 235 P. at 154 (citations omitted).

Because the constitution and recall statutes did not require any

allegation of “misfeasance or malfeasance,” the stated grounds

for removal may be “very general in their nature and character.”

Id.

¶15 Abbey embraced the populist themes that gave rise to

recall in Arizona and recognized that the benefit of the recall

process accrues to the people, not the targeted office holder.

We have since reaffirmed that view and committed ourselves to

liberally construing both constitutional and statutory recall

provisions. See, e.g., Johnson, 123 Ariz. at 18, 597 P.2d at 4

(“The [petition] procedure is not intended to protect incumbents

from being ousted by dissatisfied voters.”); id. (“Since the

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provision is for the benefit of the public rather than the

officials, we construe the language liberally in favor of

permitting recall elections.”); Miller v. Wilson, 59 Ariz. 403,

409-10, 129 P.2d 668, 671-72 (liberally construing Article 8 of

the Arizona Constitution to permit the same body with whom

recall petitions are filed to canvass and declare the result of

the recall election). The substantial compliance standard

embodies this commitment.

¶16 Ross urges us to overrule Abbey and its progeny and

abandon the substantial compliance test in favor of the strict

compliance standard first applied to a referendum in Cottonwood

Development v. Foothills Area Coalition of Tucson, Inc., 134

Ariz. 46, 49, 653 P.2d 694, 697 (1982). Cottonwood involved a

petition to refer a county zoning resolution to the voters. Id.

at 48, 653 P.2d at 696. Despite constitutional and statutory

provisions requiring that a copy of the referred legislation

accompany the petition, the petition failed to include one. Id.

at 49, 653 P.2d at 697.

¶17 In finding the petition insufficient, we noted that a

successful referendum undermines the majority will by suspending

application of the referred statute or ordinance until the

affected electorate can vote on its continued validity at the

next general election. Id. at 48, 49, 653 P.2d at 696, 697; see

also Ariz. Const. art. 4, pt. 1, § 1(3) (requiring signatures

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from only five percent of the voters). Thus, a referendum gives

a “small minority of the voters . . . the power to suspend

legislation enacted by the duly elected representatives of the

people, legislation that could be supported by a majority of the

electors at the subsequent referendum election.” Cottonwood,

134 Ariz. at 48, 653 P.2d at 697 (citation omitted).

¶18 We therefore cautioned that “[w]here a power so great

as the suspension of an ordinance or of a law is vested in a

minority, the safeguards provided by law against its irregular

or fraudulent exercise should be carefully maintained.” Id. at

48-49, 653 P.2d at 696-97 (internal quotations omitted).

¶19 Ross argues that, like a referendum, a recall permits a

minority to potentially thwart the will of the majority. He

further claims that because the framers were concerned with

fraud and abuse in both recalls and referenda, we should apply

the same test to both types of cases. This reasoning, however,

is faulty for at least two reasons.

¶20 First, unlike the referendum process, the recall

process does not allow a minority of voters to suspend a

decision supported by the majority. Rather, in a recall, the

incumbent continues to serve in office until the issue goes

before the affected electorate for a full vote. Ariz. Const.

art. 8, pt. 1, § 3; A.R.S. § 19-216(B) (2002). If the official

wins the recall election, his term in office is not interrupted.

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Ariz. Const. art. 8, pt. 1, § 3; A.R.S. § 19-216(A). Moreover,

although a referendum petition requires signatures by only five

percent of electors, Ariz. Const. art. 4, pt. 1, § 1(3), a

successful recall petition requires the signatures of twenty-

five percent of electors, id. art. 8, pt. 1, § 1. Our

constitution and statutes thus already protect against abuse of

the recall process.2

¶21 Second, abandoning Abbey would fail to respect

Arizona’s strong devotion to recall as a progressive process

intended “for the benefit of the public rather than the

officials.” Johnson, 123 Ariz. at 18, 597 P.2d at 4. The

public has a constitutional right to recall elected officers for

“misfeasance or malfeasance . . . or no reason whatever.”

Abbey, 28 Ariz. at 63, 235 P. at 154. The delegates to the

Constitutional Convention of 1910 were willing to risk statehood

over a robust recall system that subjected every official to

removal. See Records, supra ¶ 7, at 920, 926. Adopting a

standard that makes it more difficult for the public to remove

its own officers would frustrate this historical intent. Seeing

no reason to abandon 86 years of precedent and 100 years of

2
The legislature imposed additional protections against
abuse of the recall system when it adopted A.R.S. § 19-208.02
(2002), which requires a second round of signature certification
by the county recorder. See 1973 Ariz. Sess. Laws, ch. 159,
§ 17 (1st Reg. Sess.).
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commitment to popular recall, we reaffirm our support of Abbey’s

substantial compliance standard.

2. The “genuineness” requirement

¶22 Ross next contends that the oath subscribed by the

petition circulators was deficient. The constitution requires

circulators of recall petitions to “subscribe an oath . . . that

the signatures thereon are genuine.” Ariz. Const. art. 8, pt.

1, § 2. A statute also requires each circulator to sign “an

affidavit . . . verify[ing] that each of the names on the sheet

was signed in his presence on the date indicated, and that in

his belief each signer was a qualified elector of the election

district on the date indicated in which such recall election

will be conducted.” A.R.S. § 19-205(B) (2002).

¶23 The petition in this case substantially complied with

these requirements. The circulator of each petition signed an

affidavit that he or she “believe[d] that each signer’s name and

residence address or post office address [we]re correctly stated

and that each signer [wa]s a qualified elector of the state of

Arizona.” As the trial judge observed, this oath is the

substantial equivalent of avowing the genuineness of the

signatures.

¶24 Although the affirmation does not include the word

“genuine,” that omission is not determinative. The constitution

does not require any particular form of oath. Ariz. Const.

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art. 8, pt. 1, § 2. Instead, the implementing statute sets

forth the contents of the oath, see A.R.S. § 19-205(B),3 which

the affidavit in this case tracks nearly identically, including

an affirmation that the signers’ names and addresses were

written in the circulator’s presence and were “correctly

stated.” This satisfies the constitution’s genuineness

requirement.4 Requiring anything more than affirmation that the

circulator believed that the signers were qualified electors and

that they signed in his presence would frustrate rather than

promote the public’s right to recall. See Pacuilla, 186 Ariz.

at 368, 923 P.2d at 834.

3
A.R.S. § 19-205(B) provides as follows:
The person before whom the signatures were written on
the signature sheet shall in an affidavit subscribed
and sworn to by him before a notary public verify that
each of the names on the sheet was signed in his
presence on the date indicated, and that in his belief
each signer was a qualified elector of the election
district on the date indicated in which such recall
election will be conducted.
Moreover, each signature must be made in the circulator’s
presence. Id. § 19-205(A).
4
  Other than checking birth certificates, social security
cards, state-issued driver’s licenses, and voter registration
cards, it is difficult to conceive how a circulator might verify
that a signature is “genuine” under Ross’s definition. The
framers apparently recognized this problem. The originally
proposed language of Article 8, Part 1, Section 2, required the
circulator to affirm that “the statements therein made are true,
and that the signatures are genuine.” Records, supra ¶ 7, at
1089 (emphasis added). The framers amended this section to
remove the italicized language after Donnell Cunningham of
Cochise County commented that he “cannot see how this can be an
operative measure.” Id. at 261.

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 3. The circulator’s oath

¶25 Ross makes two related arguments regarding the

circulator’s oath. First, he contends that the oath was

deficient because it was the same oath used for initiatives and

referenda, whereas the constitutional drafters intended that the

oath for recall be different. See Records, supra ¶ 7, at 269;

A.R.S. § 19-205(C) (requiring additional language for recall

oath). Ross may be correct that the founders initially intended

different oaths,5 but the constitution itself does not contain

this requirement and the legislature has since resolved the

issue by requiring additional averments for initiatives and

referenda, making the oaths the same.

¶26 The constitution mandates that circulators of

initiatives and referenda swear that “each of the names on said

sheet was signed in the presence of the affiant and that in the

belief of the affiant each signer was a qualified elector of the

State.” Ariz. Const. art. 4, pt. 1, § 9. This is the “form

prescribed for initiative and referendum.” See A.R.S. § 19-

205(C) (relating to recall); see also id. § 19-112(C) (Supp.

2011) (requiring substantially similar statements for

initiatives and referenda).

5
During the constitutional debates, one of the framers
suggested that the oath requirement for the recall petitions
“simply refer[] to the form of petition required in the
initiative and referendum.” Records, supra ¶ 7, at 269. The
framers rejected this amendment. Id.
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¶27 The petition at issue here contains not only the

statements required by the constitution and statute for

initiatives and referenda, but also an additional statement.

The circulator’s affidavit read as follows:

I . . . depose and say that each individual signed
this sheet of the foregoing petition in my presence on
the date indicated, and I believe that each signer’s
name and residence address or post office address are
correctly stated and that each signer is a qualified
elector of the state of Arizona . . . .

Therefore, the circulator’s oath contains language in addition

to that constitutionally mandated for referenda and initiative

circulators and so not only complies with the constitution, but

also satisfies Ross’s “additional language” test.6

¶28 Second, Ross argues that the oath failed to satisfy

§ 19-205(B) because the circulators’ affidavits did not affirm

that each signer was a “qualified elector of the election

district.” We disagree.

¶29 Each circulator must swear or affirm to a belief that

“each signer was a qualified elector of the election district on

6
The difference between the initiative and referendum oath
and the recall oath was intended to be that a recall petition
circulator, in addition to the avowals set forth in the
constitution and statutes, had to avow that “the circulator
believes that the circulator is qualified to register to vote
and all signers [of the petition] are qualified to vote in the
recall election.” A.R.S. § 19-205(C). That language has since
been incorporated in the affidavit that is now statutorily
required by A.R.S. § 19-112(D) for circulators of initiatives
and referenda. The legislature has the power to determine that
the oath for initiatives and referenda should include more
avowals than the constitutional minimum.
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the date indicated in which such recall election will be

conducted,” A.R.S. § 19-205(B), and that all “signers [of the

petition] are qualified to vote in the recall election,” id.

§ 19-205(B).

¶30 On each signature sheet here, the circulator swore his

or her belief that each signer was “qualified to vote in the

recall election.” This statement follows the language in § 19-

205(C) identically and is the functional equivalent of saying

the signer is a qualified elector of the electoral district.7

Moreover, the top-front of each sheet included the language,

“We, the qualified electors of the electoral district from which

State Senator Pearce, District 18, was elected, demand his

recall.” The grounds for recall are prefaced by the statement,

“We, Citizens for a Better Arizona and residents of District 18,

submit this petition . . . .” This language, combined with the

language in the affidavit itself, dispels any confusion about

who could sign the petition and clarifies that only qualified

electors of District 18 could sign. See Feldmeier v. Watson,

211 Ariz. 444, 449, 123 P.3d 180, 185 (2005) (finding

7
Not only does the oath track § 19-205(C), it is also the
same language the secretary of state uses on the sample recall
petition forms available to the public. Although compliance
with a government-supplied sample form does not guarantee
validity, see W. Devcor, 168 Ariz. at 430-32, 814 P.2d at 770-
72, we do find such compliance persuasive in the recall context
when the language of the sample form substantially complies with
constitutional and statutory requirements.
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substantial compliance with initiative petition in Prescott that

referred to “qualified electors of the state of Arizona”). The

petition sheets substantially comply with § 19-205(B) and (C).

4. Adequacy of grounds for recall

¶31 “Every recall petition must contain a general

statement, in not more than two hundred words, of the grounds of

such demand.” Ariz. Const. art. 8, pt. 1, § 2; see also A.R.S.

§ 19-203(A) (Supp. 2011). Each sheet of CBA’s petition included

the following grounds for recall:

We, Citizens for a Better Arizona and residents of
District 18, submit this petition to recall State
Senator Russell Pearce for his failure to focus on
issues and concerns that affect all Arizonans. Mesa
and Arizona need a leader who will pass laws to create
jobs, protect public education and ensure access to
health care for our children and those most in need.
We deserve a representative that reflects our values,
beliefs and vision for Mesa and all of Arizona. By
signing this petition we publicly withdraw our support
for Russell Pearce and what he represents.

¶32 Ross complains that the final sentence in this

paragraph violates the constitution and A.R.S. § 19-203(A)

because it does not state a specific ground for recall and thus

is misleading. As we stated in Abbey, however, the “evident

purpose [of the recall is] to permit the electorate to get rid

of an . . . officer with whom, for any or no reason whatever for

that matter, they have become displeased.” 28 Ariz. at 63, 235

P. at 154. Therefore, “[t]he grounds or reasons assigned in the

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petition for the recall may be very general in their nature and

character.” Id.

¶33 Voters may attempt to remove an officer for whatever

reasons they choose and this “general statement,” taken as a

whole, clearly communicates reasons for seeking removal of

Senator Pearce. Moreover, the final sentence has no potential

to mislead voters, as several other portions of the petition

clarify that the purpose of signing is to recall the senator.

The petition’s statement of grounds substantially complies with

A.R.S. § 19-203(A) and Article 8, Part 1, Section 2 of the

Arizona Constitution.

5. Striking entire petition sheets for individually
deficient signatures

¶34 Petition sheets bearing false or fraudulent circulator

affidavits are void. See Brousseau v. Fitzgerald, 138 Ariz.

453, 456, 675 P.2d 713, 716 (1984). Ross argues that this rule

requires us to strike several signature sheets from CBA’s recall

petition because the county recorder could not certify

individual signatures on them, rendering the circulator’s

affidavit “false.” If, he argues, the county recorder could not

match a voter registration signature to a petition signature, it

must mean that “the circulator did not truly witness the name of

each petition being signed as stated in the circulator’s

affidavit.” Once again, we are not convinced.

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¶35 In Brousseau, minors and unqualified electors

circulated petitions, and individuals who had not circulated any

petition signed the circulator’s affidavit. 138 Ariz. at 454,

675 P.2d at 714. Although the county recorder ultimately

verified most of the signatures, the Court struck the petitions,

finding that their fraudulent circulation tainted the entire

process. Id. at 456, 675 P.2d at 716.

¶36 Ross misreads Brousseau to stand for the proposition

that the Court should disqualify all petitions with affidavits

based on any false information, and he finds falsity here in the

fact that the secretary of state and county recorder could not

verify every signature. His reading ignores the distinction

between mere “omissions or irregularities” – such as the

inability to read a signer’s handwriting or a signer’s innocent

mistake about his or her voting district – on the one hand, and

true fraud by petition circulators on the other. Id. at 455-56,

675 P.2d at 715-16 (citing Lombardi v. State Bd. of Elections,

386 N.Y.S.2d 718 (N.Y. App. Div. 1976) (invalidating two sheets

“permeated with fraud”); Weisberger v. Cohen, 22 N.Y.S.2d 1011,

1012 (N.Y. Sup. Ct.), aff’d, 22 N.Y.S.2d 835 (N.Y. App. Div.

1940) (invalidating petition sheets rife with fraud)).

¶37 The signature sheets may contain some signatures from

electors who are not qualified to vote in the recall election.

But Ross presented no evidence that the circulator obtained

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those signatures by fraud or that the circulator’s oath was

itself fraudulent. Fraud requires an element of knowledge – a

guilty mental state. See Smith v. Pinner, 68 Ariz. 115, 122,

201 P.2d 741, 745 (1949). Ross provided no evidence that the

circulators in this case knew that the signatures were invalid

or that their affidavits were false. This case does not fall

within the ambit of Brousseau and we will not strike entire

petitions simply because they contain individually disqualified

signatures. See Harris v. City of Bisbee, 219 Ariz. 36, 43

¶ 23, 192 P.3d 162, 169 (App. 2008) (noting that “excluding all

signatures on a signature sheet is appropriate only when an

affidavit is defective and the presumptive validity of the

affected signatures has not been restored or when . . . the

affidavit is false”).

C. Transient Voters

¶38 In addition to his constitutional and statutory

challenges, Ross argues that the petition improperly included

471 signatures from voters who lived in Legislative District 18

when they signed the petition, but were registered to vote in

another district. He asks us to overrule Pacuilla, 186 Ariz. at

369, 923 P.2d at 835, and hold that these voters are not

“qualified electors.” Given our resolution of Ross’s other

challenges, the disposition of these 471 signatures is moot.

The parties agree that the final certification yielded 10,296

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valid signatures and that only 7,756 were required to compel an

election. Thus even if Ross’s challenge on this issue

prevailed, the petition would still contain 9,825 signatures,

2,069 more than necessary to move forward with the recall

election.

D. Attorneys’ Fees

¶39 Ross seeks attorneys’ fees pursuant to the private

attorney general doctrine. See Arnold v. Ariz. Dep’t of Health

Servs., 160 Ariz. 593, 609, 775 P.2d 521, 537 (1989). Because

Ross has not prevailed, however, he is not eligible for

attorneys’ fees. Id.

III. DISPOSITION

¶40 CBA’s petition for the recall of Senator Pearce

substantially complies with the constitutional and statutory

requirements. We therefore affirm the judgment of the trial

court.

_____________________________________
Rebecca White Berch, Chief Justice

CONCURRING:

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

_____________________________________
W. Scott Bales, Justice

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_____________________________________
A. John Pelander, Justice

_____________________________________
Robert M. Brutinel, Justice

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