Jenkins v. Hale

SUPREME COURT OF ARIZONA
In Division

ROYCE JENKINS, ) Arizona Supreme Court
) No. CV-08-0208-AP/EL
Plaintiff/Appellant, )
) Maricopa County
v. ) Superior Court
) No. CV2008-013774
ALBERT HALE; JAN BREWER, in her )
official capacity as Arizona )
Secretary of State; COCONINO )
BOARD OF SUPERVISORS; NAVAJO ) O P I N I O N
COUNTY BOARD OF SUPERVISORS; )
APACHE COUNTY BOARD OF )
SUPERVISORS; MOHAVE COUNTY BOARD )
OF SUPERVISORS; YAVAPAI COUNTY )
BOARD OF SUPERVISORS; CANDACE D. )
OWENS, in her official capacity )
as Coconino County Recorder; )
LAURETTE JUSTMAN, in her )
official capacity as Navajo )
County Recorder; LENORA Y. )
JOHNSON, in her official )
capacity as Apache County )
Recorder; JOAN McCALL, in her )
official capacity as Mohave )
County Recorder; and ANA )
WAYMAN-TRUJILLO, in her official )
capacity as Yavapai County )
Recorder, )
)
Defendants/Appellees. )
_________________________________ )

Appeal from the Superior Court in Maricopa County
Hon. Joseph B. Heilman, Judge
AFFIRMED
________________________________________________________________

CANTELME & BROWN, P.L.C. Phoenix
By David J. Cantelme
D. Aaron Brown
Paul R. Neil
Attorneys for Royce Jenkins
PERKINS, COIE, BROWN, & BAIN, P.A. Phoenix
By Paul F. Eckstein
Daniel C. Barr
Rhonda L. Barnes
Craig A. Morgan
James E. Barton, II
Attorneys for Albert Hale

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Mary R. O’Grady, Solicitor General
Tanja K. Shipman, Assistant Attorney General
Attorneys for Janice K. Brewer
________________________________________________________________

B E R C H, Vice Chief Justice

¶1 We have been asked to decide whether an elector’s

signature on a nominating petition is invalid as a matter of law

if the elector provides a post office box address in the address

portion of the signature line. We hold that it is not.

I. FACTS AND PROCEDURAL HISTORY

¶2 Albert Hale seeks his party’s nomination for state

senator from Legislative District Two. To qualify for the

primary ballot, Hale needs 522 valid signatures on his

nominating petitions. Hale submitted eighty petition sheets

that contained more than 800 signatures from electors in Apache,

Coconino, and Navajo Counties.

¶3 Royce Jenkins, a qualified elector, challenged 513

signatures: 321 from Apache County, 159 from Navajo County, and

33 from Coconino County. Of the challenged signatures, the

Apache County Recorder validated 227 signatures and the Navajo

County Recorder validated two signatures. The Coconino County
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Recorder found every challenged signature to be invalid. In

total, the county recorders rejected 284 signatures. But the

recorders differed in their validating methodologies: The

Navajo and Coconino County Recorders invalidated signatures that

contained only a post office box address; the Apache County

Recorder, on the other hand, did not. If the Apache County

Recorder could verify that the signer was a registered voter,

the signature was approved.

¶4 On June 27, 2008, the superior court conducted a

hearing. The trial judge found that Hale’s petitions contained

523 valid signatures1 and granted Hale’s motion for judgment as a

matter of law. Jenkins appealed to this Court, and by an order

dated July 7, 2008, we affirmed. This opinion explains our

reasoning.

¶5 We have jurisdiction pursuant to Rule 8.1 of the

Arizona Rules of Civil Appellate Procedure and Arizona Revised

Statutes (“A.R.S.”) section 16-351(A) (2006).

II. DISCUSSION

¶6 In Arizona, candidates seeking placement on primary

election ballots must gather signatures from qualified electors

and file them with the appropriate elections official. A.R.S.

1
There is some discrepancy in the record whether Hale
submitted 523 or 533 valid signatures. Because it makes no
difference to the resolution of this case, we treat the trial
court’s finding as correct.

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§ 16-322(A). These signatures are meant to ensure that

candidates have “adequate support from eligible voters to

warrant being placed on the ballot.” Lubin v. Thomas, 213 Ariz.

496, 498, ¶ 15, 144 P.3d 510, 512 (2006).

¶7 The signatures must be collected on “nomination

petitions,” A.R.S. § 16-314(B), which must conform to certain

enumerated statutory requirements, § 16-315(A). At the center

of this controversy is the requirement that the petitions be

divided into four columns bearing the following headings:

signature; printed name; actual residence address or
description of place of residence, city, town or post
office; and date of signing.

§ 16-315(A)(4) (emphasis added). Once signatures have been

collected, the petition circulator must “verify that . . . in

his belief each signer was a qualified elector who resides at

the address given as the signer’s residence on the date

indicated . . . .” § 16-321(D).

¶8 Any qualified elector may challenge a candidate’s

petitions. See § 16-351(A) (regarding nomination challenges).

The challenger may question the candidate’s qualifications for

office, § 16-351(B), or may test the validity of the nominating

petitions or the signatures on the forms themselves, § 16-

351(A)-(B). As a general rule, nominating petitions that are

“circulated, signed and filed” are presumptively valid, Miller

v. Bd. of Supervisors of Pinal County, 175 Ariz. 296, 301, 855
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P.2d 1357, 1362 (1993); Bd. of Supervisors of Maricopa County v.

Superior Court, 103 Ariz. 502, 504, 446 P.2d 231, 233 (1968),

and the challenger bears the burden to prove, by clear and

convincing evidence, that a signer is not a qualified elector,

see Blaine v. McSpadden, 111 Ariz. 147, 149, 526 P.2d 390, 392

(1974).

¶9 Whether petition signatures are invalid if signers

provide a post office box address implicates two questions.

First, what address information did the legislature intend

petition signers to provide on the nominating petition? Second,

if the legislature intended signers to provide either a

residence address or a description of the residence location, is

a signature invalid as a matter of law if the signer provides a

post office box address?

¶10 Our primary task in answering these questions is to

discern the legislature’s intent. Clifton v. Decillis, 187

Ariz. 112, 114, 927 P.2d 772, 774 (1996). The statute’s text is

the best evidence of that intent, but we “will examine the

policy behind the statute, the evil sought to be remedied, the

context, the language, and the historical background” if

necessary to help us determine a statute’s meaning. Lubin, 213

Ariz. at 498, ¶ 14, 144 P.3d at 512 (quoting Moreno v. Jones,

213 Ariz. 94, 98, ¶ 24, 139 P.3d 612, 616 (2006)). These

questions present issues of law, which we review de novo.
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Moreno, 213 Ariz. at 101-02, ¶ 40, 139 P.3d at 619-20.

A. What Address Information Must Signers Provide?

¶11 We must first determine what address information the

legislature intended signers to provide on nominating petitions.

Jenkins argues that the text of § 16-315(A)(4) requires either

an “actual residence address” or a “description of [a] place of

residence,” and that a post office box is neither. Jenkins also

argues that other statutory language shows the legislature’s

intent that signers provide a residence address. Finally,

Jenkins urges us to construe “post office” to exclude post

office boxes because the statute seeks to facilitate the

election official’s determination of whether the signer is a

qualified elector, and a post office box number does not further

that purpose.

¶12 Hale, on the other hand, argues that § 16-315(A)(4) is

written in the disjunctive and that “post office” is an

alternative to “actual residence address” or “description of

place of residence, city, [or] town,” and, therefore, it invites

signers to provide post office box addresses.

¶13 Although the parties briefed and argued the case under

§ 16-315(A)(4), that section does not control the inquiry before

us. It does, however, provide some guidance. Section 16-

315(A)(4) sets forth the requirements for the form of the

petition, which the petitions at issue in this case clearly
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satisfy. But § 16-315(A) does not specify what the signers of

the petition must put in each column on the form. This lack of

statutory guidance differs from the procedure for initiative,

referendum, and recall elections, for which specific statutes

dictate the information signers must provide on the petition

forms. See Ariz. Const. art. 4, pt. 1, § 1(9) (requiring

initiative and referendum petitions to “contain” a declaration,

address, and date of signing). Compare A.R.S. §§ 19-101, -102

(2002) (describing form of petition), with A.R.S. § 19-112(A)

(2002) (requiring signers of initiative and referendum petitions

to write, “in the appropriate spaces” on the initiative or

referendum petition, a residence address or a description of

residence location), and A.R.S. § 19-205(A) (2002) (same for

recall petitions). Section 16-315(A) therefore does not control

the disposition of this case because the nominating petitions

were prepared exactly as § 16-315(A) requires.

¶14 Nonetheless, the format required by § 16-315(A)(4),

when considered with other provisions of the election statutes,

provides guidance by suggesting that the legislature intended

for signers to provide their residence address or a description

of the residence location. Considered alone, § 16-315(A)(4)

does not clearly require this information; the column heading

indicates that a signer may provide either (1) an “actual

residence address” or (2) a “description of [a] place of
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residence, city, town or post office.” This language arguably

invites the signer to provide a “description of [a] . . . post

office” that is distinct from one’s “place of residence.”

¶15 Other statutes, such as A.R.S. §§ 16-315(B)(4) and 16-

321(D), however, shed light on the information desired. Section

16-315(B)(4) specifically requires the petition to include the

circulator’s “actual residence address or, if no street address,

a description of residence location.” We see no reason that the

legislature would desire different address information from

circulators than from signers since the purpose of the address

requirement is to determine whether the signer is a qualified

elector and whether the circulator is qualified to register to

vote.

¶16 Section 16-321(D) similarly suggests that an actual

residence location was desired. That section requires the

circulator to verify that the signer “resides at the address

given as the signer’s residence.” The “address given” evidently

refers to the information beside the signer’s name on the

petition form. A circulator could not believe that a person

resides at a post office box.

¶17 Instead, we believe that the legislature intended the

signer to identify, on the nominating petition form, the

signer’s actual residence address or some description of its

location, whether by reference to “[a] place,” or to the
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relevant “city, town or post office.”2

B. Are Signatures That Provide a Post Office Box Instead of a
Residence Address Automatically Invalid?

¶18 Having determined that the legislature intended signers

to provide their residence address or a description of the

residence location, we must nevertheless determine whether

signatures must be invalidated if signers provide a post office

box address. We conclude that they need not be.

¶19 Unlike statutes governing initiative, referendum, and

recall petitions, no statute directs election officials to

invalidate nominating petition signatures that contain a post

office box address.3 See A.R.S. § 19-121.01(A)(1), (A)(3)(b).

2
Legislative clarification of the statutory requirements for
signatures on candidate nominating petitions would be helpful to
both candidates and election officials. In other contexts, the
legislature has clearly indicated that a post office box is
distinct from a signer’s residence address or a description of
the location of residence. See A.R.S. §§ 19-101(A), -102(A)
(describing form of petition in referendum and initiative
petitions to include separate columns for “[a]ctual address”
(or, if no street address, a description of residence location)
and for “Arizona post office address”); § 16-152(A)(4)
(describing voter registration form to permit “post office
address” for a mailing address as distinct from required address
of actual place of residence or description of residence
location).
3
Our analysis deals only with nominating petitions.
Initiative, referendum, or recall petitions are governed by
different statutes, which require the Secretary of State to
disqualify signatures “[i]f the residence address or the
description of residence location is missing.” A.R.S. §§ 19-
121.01(A)(3)(b), -208.01 (2002). They also require the county
recorder, as part of the random sampling procedure, to
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We therefore look to the purpose supporting Arizona’s nominating

petition statutes to determine whether these signatures should

be disqualified as a matter of law. Adams v. Bolin, 77 Ariz.

316, 320, 271 P.2d 472, 474 (1954) (observing that it is “the

intent and purpose of the law, not the letter, that must

control”). Nominating petitions are designed to “[weed] out the

cranks, the publicity seekers, [and] the frivolous candidates

who have no intention of going through with the campaign . . . .

yet not keep out those who are serious in their efforts and have

a reasonable number of supporters.” Clifton, 187 Ariz. at 115,

927 P.2d at 775 (quoting Adams, 77 Ariz. at 320, 271 P.2d at

475) (first alteration in Clifton). We require signers to

supply their name, address, and date of signing to “provide a

means of identifying [the signer] as a person entitled to sign

such [a] petition and prevent forgeries of names, as well as to

indicate the precinct in which he lives.” Adams, 77 Ariz. at

321, 271 P.2d at 475. “[T]he purpose for requiring the address

of the petitioner is to afford a convenient method of checking

whether [the person signing a petition] is a qualified elector.”

Whitman v. Moore, 59 Ariz. 211, 224, 125 P.2d 445, 452 (1942),

overruled in part on other grounds by Renck v. Superior Court,

66 Ariz. 320, 327, 187 P.2d 656, 660 (1947). Indeed, “[t]he

disqualify signatures if “[n]o residence address or description
of residence location is provided.” §§ 19-121.02(A)(1), -208.02.
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ultimate substantive question . . . is whether the signer is in

all respects a qualified elector, and all the requirements in

regard to residence, date of signing, verification and the like

are to assist interested parties to ascertain this fact.” Id.

at 225, 125 P.2d at 453.4

¶20 We have analyzed whether nominating petition signatures

are invalid as a matter of law if signers’ information varies

from what the legislature intended the signers to provide. In

Clark v. Pima County Board of Supervisors, 128 Ariz. 193, 195,

624 P.2d 871, 873 (1981), for example, we addressed whether

signatures that varied from the affidavits of registration were

invalid because, at the time, § 16-315(A) provided that

nominating petitions contain a column entitled “signature as

registered.” We found that variances did not render the

signatures invalid per se; rather, we concluded that minor

variations would not invalidate an elector’s signature:

We believe that the Legislature intended to
require stricter adherence to form by the use of the
clear language of A.R.S. § 16-315(A), but we do not
believe that such action means that minor variations

4
We reject Jenkin’s argument that Whitman applies only to
cases involving initiatives and referenda, and not to those
involving nominating petitions. We are mindful of the
differences between initiatives, referenda, and nominating
petitions, but we have looked to Whitman on several occasions in
the context of nominating petitions. See, e.g., Pacuilla v.
Cochise County Bd. of Supervisors, 186 Ariz. 367, 368, 923 P.2d
833, 834 (1996) (noting that “the reasoning [of Whitman] extends
to the power to nominate persons for office”); Clark, 128 Ariz.
at 195, 624 P.2d at 873 (same).
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 in name signing would disqualify an otherwise valid
signature from consideration . . . .
When the signature appearing on a nominating
petition is not exactly the same as that on the
affidavit of registration, a prima facie case is made
by the contestant that the signer is not a registered
voter, but the proponent of the petition is free to
make an affirmative showing that the signature is in
fact that of a properly registered voter. If the
trier of fact is satisfied with the showing made by
the proponent, the signature should be accepted.

Id.

¶21 We find the reasoning in Clark instructive. As in the

case before us, Clark dealt not with whether the petition form

itself complied with § 16-315(A), but with whether the signers

completed the form in accordance with the legislature’s intent.

Providing a post office box address, which is not what the

legislature intended, see supra ¶¶ 11-17, is not unlike signing

the nominating petition with a signature that differs from the

name “as registered.” In light of the statutory purpose of

determining whether signers are qualified electors, we find it

difficult to see how a post office box address renders a

signature invalid per se if an elections official can verify

that the signer is a qualified elector. In some instances, the

election official may even have the post office box address on

file. See A.R.S. § 16-152(A)(4) (describing registration form

to allow registrants to provide a “post office address” as a

mailing address). Invalidating signatures of duly registered

electors does not further the purpose, intent, or spirit of
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Arizona’s nominating petition statutes. See Whitman, 59 Ariz.

at 225, 125 P.2d at 453.

¶22 Of course, providing a post office box address is not

without consequence. If an elector challenges the signatures of

those petition signers who failed to provide a residence address

or a description of the residence location, the presumption of

validity of those signatures disappears and the absence of the

information provides a prima facie showing that the signers are

not qualified electors. The proponent, however, may demonstrate

to the trier of fact that the challenged signatures are those of

qualified electors. If the trier accepts the proponent’s

showing, the signatures are deemed valid and should be counted

unless some other ground requires disqualification.

¶23 Here, Jenkins challenged the signatures on various

grounds, but primarily on the ground that signers provided a

post office box address. As to those signatures, the absence of

a residence address or a description of the residence location

displaced the presumption of validity, and the burden shifted to

Hale to re-establish the validity of the signatures. Hale

offered evidence from the county recorders’ review of the

signatures. In Apache County, the recorder verified that many

of the signers who provided post office box addresses were, in

fact, registered voters. Jenkins presented no evidence to rebut

Hale’s evidence that the signers were qualified electors. The
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superior court therefore appropriately counted those signatures.

See A.R.S. § 16-121.01.

III. CONCLUSION

¶24 Because the number of valid signatures exceeded the 522

signatures Hale needed to be placed on the primary ballot, we

affirm the judgment of the superior court.

_______________________________________
Rebecca White Berch, Vice Chief Justice

CONCURRING:

___________________________________
W. Scott Bales, Justice

___________________________________
Patrick Irvine, Judge*

*Pursuant to Article 6, Section 3 of the Arizona Constitution,
the Honorable Patrick Irvine, Judge of the Court of Appeals,
Division One, was designated to sit in this matter.

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