Patrick McKenna v. Javier Soto ( 2021 )

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
IN DIVISION
PATRICK MCKENNA,
Plaintiff/Appellant,
v.
JAVIER SOTO, A DEMOCRATIC PRIMARY CANDIDATE FOR ARIZONA HOUSE
OF REPRESENTATIVES IN LEGISLATIVE DISTRICT 3, ET AL.,
Defendants/Appellees.
No. CV-20-0123-AP/EL
Filed February 17, 2021
Appeal from the Superior Court in Maricopa County
The Honorable Daniel J. Kiley, Judge
No. CV2020-004839
AFFIRMED
COUNSEL:
Roopali H. Desai, Marvin C. Ruth, Kristen Yost, Coppersmith Brockelman
PLC, Phoenix, Attorneys for Patrick McKenna
Javier Soto, In Propria Persona, Tucson
Laura Conover, Pima County Attorney, Civil Division, Daniel Jurkowitz,
Deputy County Attorney, Tucson, Attorneys for F. Ann Rodriguez and the
Pima County Board of Supervisors, Ally Miller, Ramon Valadez, Sharon
Bronson, Steve Christy, and Betty Villegas
MCKENNA V. SOTO, et al.
Opinion of the Court
JUSTICE BEENE authored the Opinion of the Court, in which VICE CHIEF
JUSTICE TIMMER, and JUSTICES BOLICK and LOPEZ joined.
JUSTICE BEENE, Opinion of the Court:
¶1 This case concerns Patrick McKenna’s challenge to
nomination petitions filed by Javier Soto, a candidate for the Democratic
Party’s nomination for the Arizona House of Representatives in Legislative
District 3. McKenna appealed from a superior court judgment finding that
Soto obtained enough valid signatures to qualify for placement on the
primary election ballot. This Court issued an order affirming the superior
court’s judgment in this election case. We now explain the basis for our
decision.
BACKGROUND
¶2 To qualify for the primary ballot, Soto needed 413 valid
signatures on his nomination petitions. See A.R.S. § 16-322(A)(3)
(“Nomination petitions shall be signed by a number of qualified signers
equal to: . . . If for a candidate for the office of member of the legislature, at
least one-half of one percent but not more than three percent of the total
number of qualified signers in the district from which the member of the
legislature may be elected.”). Soto submitted petition sheets that contained
460 signatures.
¶3 McKenna, a qualified elector, challenged approximately 200
of these signatures pursuant to A.R.S. § 16-351(A). 1 As relevant here,
1 McKenna’s complaint initially challenged 205 signatures, but
McKenna later submitted a supplemental exhibit challenging only 204
signatures. The Recorder later determined that McKenna’s exhibits only
challenged 200 signatures. Because we conclude McKenna’s challenges to
the signatures fail, infra ¶ 29, this issue is not determinative of Soto’s
placement on the ballot.
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MCKENNA V. SOTO, et al.
Opinion of the Court
McKenna alleged that 40 signatures were invalid because they included an
“incomplete date” and 160 signatures were invalid because they included
an “incomplete address” for the signer. While all of the “incomplete date”
signatures listed a day and month, none of them listed a year. Likewise,
while all of the “incomplete address” signatures contained a house number
and street name, none of them contained a city/town, state, or zip code.
¶4 The Pima County Recorder (“Recorder”) reviewed the
challenged signatures and summarized its findings in a memorandum
(“Memorandum”). See § 16-351(E). The Recorder invalidated 10 of the 40
“incomplete date” signatures, relying on the Arizona Secretary of State 2019
Elections Procedures Manual (“2019 EPM”), which directs county recorders
to reject signatures with “no date or an incomplete date.” See Ariz. Sec’y of
State, 2019 Elections Procedures Manual A58 (2019). However, it validated
130 of the 160 “incomplete address” signatures because those 130 signers
provided sufficient information for the Recorder to determine that they
were eligible to sign the petition. Ultimately, the Recorder determined that
Soto had seven more signatures than was required for the ballot.
¶5 After a hearing, the trial court found in relevant part that six
of the ten signatures invalidated by the Recorder due to “date issues” were,
in fact, valid, and the Recorder properly concluded that the 130 “incomplete
address” signatures were valid. Soto therefore had enough signatures to
qualify for placement on the ballot, and the court denied McKenna’s
requested relief.
¶6 This appeal followed. We have jurisdiction pursuant to
article 6, § 5(3) of the Arizona Constitution and § 16-351(A).
DISCUSSION
¶7 McKenna argues the trial court erred by finding the
“incomplete date” and “incomplete address” signatures valid. Typically, a
nomination petition need only substantially comply with the statutory
requirements; strict compliance is not necessary “[a]bsent a clear statement
that the legislature intended a particular form requirement to be
indispensable.” Bee v. Day, 218 Ariz. 505, 507 ¶ 10 (2008); accord Adams v.
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MCKENNA V. SOTO, et al.
Opinion of the Court
Bolin, 77 Ariz. 316, 322 (1954). When there is a challenge to the content of a
nomination petition, we review de novo whether “‘a petition substantially
complies with the statutory requirements’ before denying access to a
ballot.” Bee, 218 Ariz. at 507 ¶ 8 (quoting Moreno v. Jones, 213 Ariz. 94, 101–
02 ¶ 40 (2006)).
I.
¶8 In Arizona, candidates seeking placement on an election
ballot “must gather signatures from qualified electors and file them with
the appropriate elections official.” Jenkins v. Hale, 218 Ariz. 561, 562 ¶ 6
(2008) (citing § 16-322(A)). The signatures ensure candidates have
“adequate support from eligible voters to warrant being placed on the
ballot.” Id. (quoting Lubin v. Thomas, 213 Ariz. 496, 498 ¶ 15 (2006)).
¶9 Nomination petitions must contain the following information
for each signatory: signature; printed name; actual residence address,
description of place of residence or Arizona post office box address, city or
town; and date of signing. A.R.S. § 16-315(A)(4)(a)–(d).
¶10 McKenna argues the trial court erred by finding the
“incomplete date” signatures valid because: (1) § 16-315(A)(4) and the 2019
EPM require a complete date; (2) a partial date cannot “substantially
comply” with the complete date requirement; and (3) Soto failed to
affirmatively proffer evidence supporting the court’s rehabilitation of the
“incomplete date” and “incomplete address” signatures. We disagree.
II.
¶11 A prospective candidate who wishes to be placed on an
election ballot must collect the signatures of qualified electors on
“nomination petitions,” which must contain enumerated statutory
requirements, including a “date of signing.” See A.R.S.
§§ 16-314(B), -315(A)(4). “Date of signing” is not defined in the statute.
Therefore, we must first determine what information the legislature
intended a qualified signer provide in order to comply with the statutory
obligation.
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MCKENNA V. SOTO, et al.
Opinion of the Court
¶12 In interpreting a statute, our goal is to effectuate the
legislature’s intent. SolarCity Corp. v. Ariz. Dep’t of Revenue, 243 Ariz. 477,
480 ¶ 8 (2018). “When the plain text of a statute is clear and unambiguous,”
it controls unless an absurdity or constitutional violation results. State v.
Christian, 205 Ariz. 64, 66 ¶ 6 (2003). But when, as here, the “text alone does
not resolve the parties’ dispute,” we must “attempt to glean and give effect
to the legislature’s intent, considering the statute’s context, effects and
consequences, and spirit and purpose.” Am. Fam. Mut. Ins. Co. v. Sharp, 229
Ariz. 487, 490–91 ¶ 10 (2012).
¶13 The intent and purpose for requiring a nomination petition to
contain the information set forth in § 16-315(A)(4) is to ensure that the signer
is a qualified elector. Jenkins, 218 Ariz. at 564 ¶ 19. “Indeed, ‘[t]he 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 564–65 ¶ 19 (quoting Whitman v. Moore, 59 Ariz. 211, 225 (1942)).
Additionally, the date of signing is important and necessary to determine
whether the signature was collected before the date the candidate filed his
or her statement of interest. See A.R.S. § 16-311(H) (“Any nomination
petition signatures collected before the date the statement of interest is filed
are invalid and subject to challenge.”).
¶14 In order to ascertain whether a petition signer is a qualified
elector, it is essential that the information collected in the nomination
petition be thorough and complete. Accordingly, we conclude the
legislature intended that the signer provide a complete date, consisting of
the day, month, and year, on the nomination petition. Because Soto’s
nomination petitions did not contain complete dates, the signatures did not
strictly comply with the requirements of § 16-315(A)(4).
¶15 Although it is uncontroverted that Soto’s nomination
petitions included signatures that did not contain a complete date, we must
nevertheless determine whether the trial court was correct that these
signatures substantially complied with § 16-315(A)(4). See Dedolph v.
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MCKENNA V. SOTO, et al.
Opinion of the Court
McDermott, 230 Ariz. 130, 133 ¶ 17 (2012). We conclude that the questioned
signatures substantially complied with the “date of signing” obligation.
¶16 In ascertaining whether the non-compliant signatures
substantially comply with the statute, we look at the petition as a whole to
determine whether the omission frustrates the purpose of the statute. See
Bee, 218 Ariz. at 508 ¶ 13 (“[T]o determine whether Bee’s petitions
substantially comply we look at the nominating petition form as a whole
and focus on whether ‘the omission of’ the date on which the vacant term
expired ‘could confuse or mislead electors signing the petition.’” (quoting
Moreno, 213 Ariz. at 102 ¶ 42)). Because the purpose and intent underlying
the “date of signing” requirement is to ensure that petition signers are
qualified electors, we do not believe the legislature intended to disqualify a
signature if a complete date accompanying the signature can be sufficiently
established by other information contained in the petition. See Jenkins, 218
Ariz. at 565 ¶ 21 (“Invalidating signatures of duly registered electors does
not further the purpose, intent, or spirit of Arizona’s nominating petition
statutes.”).
¶17 Applying this approach here, the trial court did not err by
concluding the signatures were valid. After reviewing the petition sheet
containing the eight signatures Soto sought to have restored, the court
concluded six of the signatures were valid because “a review of the petition
sheets as a whole . . . le[ft] no doubt that 2020 [was] the year in which each
of these six signatures was provided.” It based its conclusion on two
observations: first, that the challenged signatures appeared on the same
page as other signatures that had the same month and day but also included
the year; and second, that the words “Revised 07/31/2019, Secretary of
State” were printed along the bottom margin of the petition sheet, meaning
it was impossible for signers to sign before that date. We agree with the
court that a review of the information contained in the petition sheet
revealed the validity of the questioned signatures. The court accordingly
did not err by finding that these signatures substantially complied with
§ 16-315(A)(4).
¶18 In reaching this conclusion, we reject McKenna’s argument
that Soto failed to present evidence to rehabilitate the challenged
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MCKENNA V. SOTO, et al.
Opinion of the Court
signatures. Once the presumption of validity regarding the questioned
signatures is displaced, the burden shifts to the proponent of the signatures
to prove the signer was a qualified elector and eligible to sign the petition.
See Jenkins, 218 Ariz. at 565–66 ¶ 23.
¶19 Here, the parties stipulated to the admission of the
nomination petitions in evidence. Relying on the petitions, Soto asserted
the signatures containing the day and month substantially complied with
the “date of signing” requirement. As previously indicated, the trial court’s
review of the petitions allowed it to properly conclude that the questioned
signatures substantially complied with § 16-315(A)(4). Because Soto relied
on the evidence in the record, he met the burden of proving that the signers
were eligible to sign the petition.
¶20 Similarly, McKenna’s reliance on the 2019 EPM as authority
to reject the non-compliant signatures fails. The purpose of the 2019 EPM
is to ensure election practices are consistent and efficient throughout
Arizona. The EPM is promulgated pursuant to A.R.S. § 16-452, which
requires that the Secretary of State “prescribe rules to achieve and maintain
the maximum degree of correctness, impartiality, uniformity and efficiency
on the procedures for early voting and voting, and of producing,
distributing, collecting, counting, tabulating and storing ballots.” § 16-
452(A). The EPM also contains guidance on matters outside these specific
topics, including candidate nomination petition procedures, see 2019 EPM
at 107–23, and the regulation of petition circulators, see id. at 250–54. These
other topics, however, fall outside the mandates of § 16-452 and do not have
any other basis in statute. Because the statute that authorizes the EPM does
not authorize rulemaking pertaining to candidate nomination petitions,
those portions of the EPM relied upon by McKenna to invalidate the
signatures without a complete date were not adopted “pursuant to” § 16-
452.
¶21 Accordingly, the 2019 EPM’s directive to reject a signature
without a complete date does not have the force of law, and simply acts as
guidance. Soto’s noncompliance with the 2019 EPM did not render the
questioned signatures invalid.
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MCKENNA V. SOTO, et al.
Opinion of the Court
III.
¶22 Next, McKenna asserts the trial court erred by finding the
“incomplete address” signatures valid because: (1) neither Soto nor the
Recorder presented evidence to rehabilitate the signatures; and (2) the trial
court relied on an unsupported statement by the Recorder that “all 130
[signers] were . . . eligible to sign the nomination petition.” He also claims
the court erred in finding the challenged “incomplete address” and
“incomplete date” signatures valid without reviewing them for overall
validity. We disagree.
¶23 We have previously held that “the legislature intended [a]
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 relevant ‘city, town or post office.’” Jenkins, 218 Ariz.
at 564 ¶ 17. However, we also concluded that signatures need not be
invalidated for failing to strictly comply with this requirement. Id. ¶ 18.
¶24 “Actual residential address” is not defined by statute or our
caselaw. As mentioned above, when the language of a statute is not clear
and unambiguous, “we apply secondary interpretive principles, such as
considering ‘the statute’s subject matter, historical background, effect and
consequences, and spirit and purpose.’” Molera v. Hobbs, 250 Ariz. 13, 24
¶ 34 (2020) (quoting Rosas v. Ariz. Dep’t of Econ. Sec., 249 Ariz. 26, 28 ¶ 13
(2020)).
¶25 Similar to the “date of signing” requirement, the purpose of
requiring a signer’s address is 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.” Jenkins, 218
Ariz. at 564 ¶ 19 (quoting Adams, 77 Ariz. at 321). Accordingly, considering
the purpose of requiring an “actual residence address,” we conclude the
legislature intended signers to provide a street address and a city or town,
or a street address and a zip code. Because of this, a signer must provide a
city/town or zip code under “actual address” so the election official can
ascertain whether the signer was eligible to sign the petition.
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MCKENNA V. SOTO, et al.
Opinion of the Court
¶26 However, as with the “date of signing” requirement, an
election official need not necessarily invalidate signatures without a
city/town or a zip code. See id. ¶ 18. If the official can verify the eligibility
of a voter using the incomplete address, the purpose of the requirement is
fulfilled. See § 16-351(E)–(F); Lohr v. Bolick, 249 Ariz. 428, 431 ¶ 10 (2020)
(holding that a legislative candidate that failed to comply with the statutory
requirement to list her actual residence address on her nomination petition
nonetheless substantially complied by listing a private mailbox address).
¶27 As applied here, the trial court did not err by finding the
signatures valid. The Recorder’s Memorandum and testimony provided at
the hearing established that the Recorder had been able to use the
information provided by the signers to locate the signers’ voter registration
records. Based on this review, the Recorder determined that all 130 signers
were eligible to sign. Accordingly, the court did not err by finding the
signatures valid.
¶28 As with the “incomplete date” signatures, we reject
McKenna’s argument that Soto had to affirmatively present evidence that
the signers were eligible to sign his nomination petition. It is true that we
have stated that, once the presumption of validity disappears, “[t]he
proponent [of the signatures] . . . may demonstrate to the trier of fact that
the challenged signatures are those of qualified electors.” Jenkins, 218 Ariz.
at 565 ¶ 22. We now clarify that the proponent need not present additional
evidence if sufficient evidence in the record demonstrates the signatures are
valid. The court may rely on the information in the record before it in
making its determination. Cf. § 16-351(E) (“The county recorder . . . shall
perform petition signature verifications for nomination petition challenges
. . . and shall provide testimony and other evidence on request of any of the
parties to the challenge.”).
¶29 Further, we reject McKenna’s argument that the trial court’s
reliance on the Recorder’s testimony was erroneous because she did not
determine whether the 130 signatories resided in the correct legislative
district. McKenna only challenged nine signatures for both listing an
incomplete address and for being signed by an out-of-district signer, and
the Recorder invalidated all nine signatures under the out-of-district
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MCKENNA V. SOTO, et al.
Opinion of the Court
ground. Although the Recorder must verify signatures against challenges
pursuant to § 16-351(E), it need not conduct a review to ascertain the overall
validity of a questioned signature. The Recorder may “invalidate signatures
for legitimate reasons other than those specifically alleged in the
challenger’s complaint,” but is “not obligate[d] . . . to search for defects
other than those asserted by the challenger.” McClung v. Bennett, 225 Ariz.
154, 157 ¶ 13 (2010) (quoting Lubin, 213 Ariz. at 499 ¶ 19). For the same
reason, McKenna’s argument that the Recorder did not review the
“incomplete date” signatures for overall validity fails. The challenger bears
the burden of establishing that the challenged signatures are invalid, and
requiring the Recorder to search for other reasons to invalidate the
signatures would defeat the presumption of validity that attaches to
petition signatures.
CONCLUSION
¶30 We conclude that on this record: (1) the signatures dated by a
signer with a month and day but no year substantially complied with the
requirement of a “[d]ate of signing”; and (2) the signatures that listed the
signer’s street address but no municipality, state, or zip code substantially
complied with the requirement of an “actual residence address.” The
Recorder was able to verify voter eligibility on the basis of the information
that was provided. Accordingly, the trial court did not err by finding the
signatures valid, and we affirm its ruling.
10