Transportation Infrastructure v. Brewer ( 2008 )

SUPREME COURT OF ARIZONA
En Banc
TRANSPORTATION INFRASTRUCTURE ) Arizona Supreme Court
MOVING ARIZONA'S ECONOMY, a ) No. CV-08-0275-AP/EL
political committee registered )
with the Arizona Secretary of ) Maricopa County
State; THOMAS ZIEMBA, an ) Superior Court
individual, ) No. CV2008-019561
)
Plaintiffs/Appellants, )
)
v. ) O P I N I O N
)
JANICE K. BREWER, in her )
official capacity as Secretary )
of State; and HELEN PURCELL, in )
her official capacity as )
Maricopa County Recorder, )
)
Defendants/Appellees. )
)
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Mark F. Aceto, Judge
AFFIRMED
________________________________________________________________
PERKINS COIE BROWN & BAIN P.A. Phoenix
By Paul F. Eckstein
Charles A. Blanchard
Rhonda L. Barnes
M. Bridget Minder
Craig A. Morgan
James E. Barton, II
Attorneys for Transportation Infrastructure Moving Arizona's
Economy and Thomas Ziemba
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Mary R. O’Grady, Solicitor General
Barbara A. Bailey, Assistant Attorney General
Tanja K. Shipman, Assistant Attorney General
Attorneys for Janice K. Brewer, Arizona Secretary of State
COPPERSMITH GORDON SCHERMER & BROCKELMAN PLC Phoenix
By Andrew S. Gordon
Attorneys for Amici Curiae Professional Firefighters
of Arizona, Kimberly A. Demarchi, Andrew S. Gordon,
Thomas K. Irvine, and J. Grant Woods
________________________________________________________________
H U R W I T Z, Justice
¶1 The issue before us is whether the superior court
erred in dismissing claims by appellants Transportation
Infrastructure Moving Arizona’s Economy and Thomas Ziemba
(hereafter collectively referred to as “TIME”) that the
Secretary of State violated A.R.S. § 19-121.01 (2002) in her
review of an initiative petition concerning the Arizona
transportation system.
I.
A.
¶2 Our constitution reserves to the people the
legislative power of initiative. Ariz. Const. art. 4, pt. 1,
§ 1(2). That right is exercised by filing an initiative
petition with the Secretary of State not less than four months
before the date of a general election. Id. § 1(4). A
legislative measure properly proposed by initiative is referred
to the people at the next general election. Id. § 1(5).
¶3 To qualify for the ballot, an initiative petition
proposing legislation must be signed by ten percent of all
qualified electors. Id. § 1(2). The number of qualified
2
electors is “[t]he whole number of votes cast for all candidates
for Governor at the general election last preceding the filing
of” the initiative petition. Id. § 1(7).
¶4 The legislature has enacted a detailed scheme for
determining whether the sponsors of an initiative have submitted
sufficient signatures. See A.R.S. §§ 19-121 to -122 (2002 &
Supp. 2007). That process begins when “petition sheets”
containing signatures are submitted to the Secretary of State.
The initiative petition is then deemed filed and the Secretary
issues a receipt “based on an estimate . . . of the purported
number of sheets and signatures filed.” A.R.S. § 19-121(B).
¶5 The Secretary has twenty days from the date of filing,
excluding weekends and holidays, to “remove” certain signature
sheets and individual signatures under A.R.S. § 19-121.01(A).1
The Secretary is required to disqualify entire signature sheets
for specified reasons. A.R.S. § 19-121.01(A)(1). The Secretary
next reviews the remaining sheets and removes signatures by
electors not from the county with the most signers on a sheet.
1
Until this year, the period for removal was fifteen days.
See A.R.S. § 19-121.01(A) (2002). On May 27, 2008, emergency
legislation was enacted extending the time period to twenty
days. 2008 Ariz. Sess. Laws, ch. 244, §§ 3, 7 (2d Reg. Sess.).
Because this legislation was not precleared by the United States
Department of Justice under section 5 of the Voting Rights Act
of 1965, 42 U.S.C. § 1973c (2000), until July 31, 2008, the
Secretary completed removal of signatures from TIME’s signature
sheets within the previously applicable fifteen-day period.
3
A.R.S. § 19-121.01(A)(2). The Secretary also must remove
individual signatures that are missing required information,
exceed the permitted number of fifteen signatures per sheet, or
have been withdrawn. A.R.S. § 19-121.01(A)(3). The Secretary
then counts the total sheets and signatures that have not been
removed and issues a receipt to the initiative sponsor
specifying the total number of sheets and signatures “eligible
for verification.” A.R.S. § 19-121.01(A)(4)-(6).
¶6 If the number of signatures eligible for verification
“equals or exceeds the constitutional minimum,” the Secretary
then selects at random five percent of the remaining signatures.
A.R.S. § 19-121.01(B). The sample must “be drawn in such a
manner that every signature eligible for verification has an
equal chance of being included.” Id. The Secretary must
“reproduce a facsimile of the front of each signature sheet”
containing a signature selected for the sample and transmit
these facsimiles to the county recorders. A.R.S. § 19-
121.01(C).
¶7 A second phase of the verification process then
begins. The county recorders have fifteen days to determine
whether signatures in the random sample should be disqualified
4
for various reasons. A.R.S. § 19-121.02(A) (Supp. 2007).2 The
recorders must then certify their determinations to the
Secretary. A.R.S. § 19-121.02(B). The recorders also “[s]end
notice of the results” to the initiative sponsor. A.R.S. § 19-
121.02(D)(2).
¶8 After receiving the certifications from the county
recorders, the Secretary has seventy-two hours, excluding
weekends and holidays, to certify the total number of valid
signatures. A.R.S. § 19-121.04(A).3 The starting point is the
number of eligible signatures determined under § 19-121.01(A)(6)
— the number from which the Secretary selected the five-percent
random sample. A.R.S. § 19-121.04(A). The Secretary then
subtracts signatures disqualified by the county recorders.
A.R.S. § 12-121.04(A)(2).4 From the remaining eligible
2
On May 27, 2008, the statutory period was extended from ten
to fifteen days. 2008 Ariz. Sess. Laws, ch. 244, § 4 (2d Reg.
Sess.). See supra note 1.
3
The statutory period was extended from forty-eight to
seventy-two hours on May 27, 2008. 2008 Ariz. Sess. Laws, ch.
244, § 5 (2d Reg. Sess.). See supra note 1.
4
Section 19-121.04(A)(1) allows the Secretary also to
subtract from the total computed under § 19-121.01(A)(6)
signatures on petitions containing a defective circulator’s
affidavit. The Secretary, however, is required under § 19-
121.01(A)(1)(d)-(f) to remove petitions with defective
affidavits before computing the § 19-121.01(A)(6) base number.
Moreover, the review by the county recorders does not involve
circulators’ affidavits, as the recorders receive only
facsimiles of the fronts of the signature sheets under § 19-
5
signatures, the Secretary subtracts a “like percentage” of the
signatures disqualified in the random sample. A.R.S. § 19-
121.04(A)(3).
¶9 If the remaining number of signatures is greater than
one hundred five percent of the constitutional minimum, the
Secretary notifies the applicant and Governor that the
initiative should be placed on the ballot. A.R.S. § 19-
121.04(B). If the remaining number is less than ninety-five
percent of the minimum, the Secretary returns the original
signature sheets and notifies the applicant that there are
insufficient signatures. A.R.S. § 19-121.04(D). If the number
falls between ninety-five and one hundred five percent, the
Secretary orders the county recorders to examine and verify each
signature filed to determine whether the number required by the
constitution has been submitted. A.R.S. § 19-121.04(C).
_____________________
121.01(C), and the circulators’ affidavits are on the backs of
the sheets.
It appears that § 19-121.04(A)(1) is a remnant of a
previous legislative scheme. Until 1999, the Secretary of State
was also required to reproduce a facsimile of the circulator’s
affidavit for every petition sheet not removed by the Secretary,
A.R.S. § 19-121.01(C) (Supp. 1998); county recorders then
determined whether affidavits would be disqualified, A.R.S.
§ 19-121.02(A)(10), (B) (Supp. 1998). The legislature amended
the statute in 1999 to relieve the county recorders of the duty
of verifying circulators’ affidavits and accordingly also
removed the requirement that facsimiles of affidavits be
transmitted. 1999 Ariz. Sess. Laws, ch. 353, §§ 5-6 (1st Reg.
Sess.).
6
B.
¶10 On July 2, 2008, TIME filed signature sheets with the
Secretary of State, who issued an “Initial Receipt” reflecting
TIME’s estimate of the number of sheets and signatures
submitted. On July 24, 2008, the Secretary issued a second
receipt stating that she had “completed her duties” under § 19-
121.01(A) and accordingly had “filed a total of 19,945 petition
signature sheets containing 238,874 signatures.” The Secretary
listed the reasons for the removal of various sheets and
signatures submitted by TIME. See A.R.S. § 19-122(A) (requiring
the Secretary to provide the initiative sponsor “with a written
statement” for actions undertaken in the § 19-121.01 review
process). The Secretary then created a five-percent sample of
the remaining 238,874 signatures — 11,944 signatures — and sent
facsimiles of the sheets containing these signatures to the
county recorders for verification. The county recorders then
disqualified 5,021 signatures, or 42.04 percent of the sample.
The bulk of the disqualifications came from Maricopa County;
that county’s recorder received 10,445 of the signatures in the
sample and disqualified 4,712.
¶11 On August 11, 2008, the Secretary notified TIME that
after applying the recorders’ error rate to the 238,874
signatures that she had previously determined were eligible for
verification, the number of valid signatures projected from the
7
random sample was 138,451. The constitutional minimum for an
initiative proposing legislation was 153,365 signatures.
Ninety-five percent of this number is 145,697. Because TIME had
submitted only 90.28 percent of the constitutional minimum, the
Secretary concluded that the petition should not be placed on
the ballot. See A.R.S. § 19-121.04(D).
C.
¶12 On August 13, 2008, TIME filed a complaint in Maricopa
County Superior Court against the Secretary of State and the
Maricopa County Recorder. The complaint alleged that (1) the
Secretary had improperly removed 9,168 signatures before
creating the sample and (2) the Maricopa County Recorder had
improperly disqualified 429 signatures in the random sample.
TIME asked that these signatures be added to the base number of
qualified signatures. TIME also requested that the overall
error rate be adjusted in light of the signatures allegedly
improperly disqualified by the Maricopa County Recorder.
¶13 TIME contended that if its requested adjustments were
made, the valid number of signatures submitted would be at least
ninety-five percent of the constitutional minimum. Because the
Maricopa County Recorder had previously indicated that she could
not verify all the signatures submitted for another initiative
8
before early voting began,5 TIME asked that its initiative be
placed on the ballot without a verification of each signature
filed. See Save Our Pub. Lands Coalition v. Stover, 135 Ariz.
461, 464, 662 P.2d 136, 139 (1983) (holding that if county
recorders are unable to verify before the ballot printing
deadline each signature of a petition for which the random
sample produces a certification rate between ninety-five and one
hundred five percent, the initiative should be placed on the
ballot).
D.
¶14 On August 19, 2008, the Secretary of State moved to
dismiss the claims against her. She argued that under A.R.S.
§ 19-122(A), TIME was required to challenge her removal of
petition sheets and signatures within ten days of her July 24,
2008 letter. The superior court granted the motion to dismiss
and on August 21, 2008, entered a judgment pursuant to Arizona
Rule of Civil Procedure 54(b) in favor of the Secretary; the
claims against the Maricopa County Recorder remained.
5
Pursuant to A.R.S. § 19-121.04(C), the Secretary had
ordered county recorders to verify each signature submitted in
support of the “Protect Our Homes” initiative, for which the
random sample had projected a valid signature rate between
ninety-five and one hundred five percent. On August 4, 2008,
the Maricopa County Recorder notified the Secretary of State
that she could not complete this verification before early
voting was scheduled to begin.
9
¶15 On the following day, August 22, TIME filed a notice
of appeal pursuant to ARCAP 8.1(c). This Court held a
scheduling conference on the same day pursuant to ARCAP 8.1(f)
and was informed by elections officials that to comply with
statutory deadlines governing early balloting, the general
election ballot needed to be submitted to the printer by the
close of business on August 26 and finalized by August 28. See
2008 Ariz. Sess. Laws, ch. 273, § 16 (2d Reg. Sess.) (amending
A.R.S. § 16-545(B)) (requiring delivery of early ballots to the
recorder no later than the thirty-third day before the
election); id. § 14 (amending A.R.S. § 16-542(C)) (requiring
mailing of early ballots within five days after receipt by
recorder).6 With the concurrence of the parties, the Court
ordered that simultaneous briefs be filed on August 25, 2008, in
order that a decision could be reached on the following day. No
party requested oral argument.
¶16 We issued an order affirming the judgment of the
superior court on August 26, 2008, noting that an opinion would
follow. This is that opinion.
6
These statutory amendments were precleared by the
Department of Justice on September 2, 2008. The previous
versions of the two statutes were functionally the same. See
A.R.S. § 16-545(B) (2006) (requiring ballots to be delivered to
recorders by the thirtieth day preceding the Saturday before the
election); A.R.S. § 16-542(C) (requiring the recorders to mail
the ballots within five days of receipt).
10
II.
¶17 Chapter 1 of Title 19, which governs initiative and
referendum petitions, contains several provisions allowing for
judicial review of decisions by election officials and setting
deadlines for bringing suit. County recorders’ actions are
reviewed under A.R.S. § 19-121.03. Subsection (A) governs
claims that a recorder has failed or refused to comply with
§ 19-121.02; suit must be brought within ten days after the
failure or refusal. A.R.S. § 19-121.03(A). Subsection (B)
governs challenges to a recorder’s certification of the number
of valid signatures in the random sample. Suit must be brought
within ten days of the receipt of the certification by the
Secretary of State. A.R.S. § 19-121.03(B).
¶18 Section 19-122 governs challenges to actions of the
Secretary of State. Subsection (C) allows a suit to enjoin the
Secretary from certifying an initiative measure to the ballot if
the “petition filed is not legally sufficient.” A.R.S. § 19-
122(C). Subsection (C) contains no time limitation, but we have
held that any suit under this provision “must be initiated and
heard in time to prepare the ballots for absentee voting to
avoid rendering an action moot.” Kromko v. Superior Court, 168
Ariz. 51, 57, 811 P.2d 12, 18 (1991).
¶19 By their terms, neither § 19-121.03 nor § 19-122(C)
applies to TIME’s claims against the Secretary of State. The
11
only other judicial review provision in Chapter 1 is A.R.S.
§ 19-122(A). That statute provides in relevant part as follows:
If the secretary of state refuses to accept and
file a petition for the initiative . . . which has
been presented within the time prescribed, or if he
refuses to transmit the facsimiles of a signature
sheet or sheets or affidavits of circulators to the
county recorders for certification under § 19-121.01,
he shall provide the person who submitted the
petition, proposal, signature sheet or affidavit with
a written statement of the reason for the refusal.
Within ten calendar days after the refusal any citizen
may apply to the superior court for a writ of mandamus
to compel the secretary of state to file the petition
or proposal or transmit the facsimiles . . . .7
¶20 The superior court held that § 19-122(A) governs
TIME’s claims against the Secretary. The Secretary of State
provided TIME with written reasons for her disqualification of
certain signature sheets and signatures on July 24, 2008; TIME
did not commence this suit until August 13. Therefore, if § 19-
122(A) governs TIME’s claims against the Secretary, the superior
court correctly dismissed those claims as untimely.
A.
¶21 TIME first argues that its complaint is not governed
by § 19-122(A) because it attacks the Secretary’s ultimate
certification pursuant to § 19-121.04(D) that the initiative
lacked sufficient signatures to be placed on the ballot. That
7
The references in § 19-122(A) to affidavits of circulators
are apparently a historical anomaly, as the Secretary now has no
duty under § 19-121.01 to transmit facsimiles of these
affidavits to the county recorders. See supra note 4.
12
certification was not made until after the county recorders
completed their work under § 19-121.02 and thus could not have
been challenged within the ten-day period specified in § 19-
122(A), which began to run on July 24, 2008, the day the
Secretary notified TIME of her reasons for rejecting various
signature sheets and signatures.
¶22 We need not tarry over this argument. The Secretary’s
ultimate certification under § 19-121.04 as to the results of
the screening process is a purely mathematical calculation – the
Secretary starts with the base number of signatures submitted
(as previously determined by the Secretary under § 19-
121.01(A)(6)) and then subtracts signatures disqualified by the
county recorders and a “like percentage” of the signatures
disqualified in the sample. The Secretary then compares the
resulting number to the constitutional minimum to qualify for
the ballot. TIME did not allege that the Secretary made any
mathematical errors in the § 19-121.04 calculations, but rather
that the numbers used in that calculation resulted from prior
errors in the review processes conducted by the Secretary under
§ 19-121.01 and the Maricopa County Recorder under § 19-121.02.
¶23 Moreover, TIME’s argument proves too much. Challenges
to a recorder’s certification are governed by § 19-121.03(B). A
challenger cannot avoid the time limitation in § 19-121.03(B) by
claiming that the Secretary’s ultimate calculations under § 19-
13
121.04 were based on an improper certification by a county
recorder. See Open Primary Elections Now v. Bayless, 193 Ariz.
43, 46 ¶ 10, 969 P.2d 649, 652 (1998). Similarly, if § 19-
122(A) governs TIME’s challenges to the Secretary’s
determinations under § 19-121.01, the time limitations of that
statute cannot be circumvented by describing a suit as a
challenge to the ultimate § 19-121.04 calculations. Thus, we
must move to the central question in this case: Does § 19-
122(A) apply to TIME’s suit against the Secretary?
B.
¶24 TIME suggests that this Court adopt a “narrow reading”
of § 19-122(A) and hold that the statute does not apply to all
decisions made by the Secretary under § 19-121.01, but rather
only to refusals to accept and file an entire initiative
petition or to transmit to the county recorders facsimiles
created by the Secretary under § 19-121.01(C). The Secretary
argues that because TIME is challenging her removal of signature
sheets and signatures, it is necessarily contending that she
should have accepted these sheets and signatures for filing and
sent additional signatures and facsimiles to the county
recorders for verification. The Secretary contends that § 19-
122(A) therefore applies.
¶25 TIME grounds its argument in a parsing of § 19-122(A),
which refers to the failure of the Secretary “to transmit the
14
facsimiles of a signature sheet or sheets . . . to the county
recorders for certification,” not to the failure of the
Secretary to create facsimiles in the first place. TIME’s
reading of the statute is not without some technical linguistic
appeal. But, as TIME concedes, its interpretation of § 19-
122(A) creates a wide gap in the judicial review provisions of
Title 19, Chapter 1. No statute in that chapter other than
§ 19-122(A) purports to allow judicial review of the decisions
of the Secretary today challenged by TIME. Under TIME’s
reading, the initiative statutes would contain no provision for
judicial review of either the Secretary’s decision to disqualify
sheets and signatures under § 19-121.01 or the Secretary’s
consequent failure to create a sufficiently large random sample
for recorder review.
¶26 We confronted a similar issue in Pointe Resorts, Inc.
v. Culbertson, 158 Ariz. 137, 761 P.2d 1041 (1988). In that
case, a city clerk determined that the proponents of a
referendum challenging a municipal ordinance had submitted an
insufficient number of valid signatures. Id. at 139, 761 P.2d
at 1043. The plaintiff challenged that certification; the issue
was whether that challenge was governed by the ten-day
limitation in § 19-121.03(B).
¶27 The challenger in Pointe Resorts relied on the
language of § 19-121.03(B), which on its face applied only to
15
“the certification made by the county recorder.” Id. at 143,
761 P.2d at 1047. We rejected that claim in part because the
“statute and its provisions must of necessity apply here or
there is no machinery by which the courts could review the
clerk’s actions at all.” Id. at 143-44, 761 P.2d at 1047-48.
We refused to countenance such a “nonsensical” result. Id. at
143, 761 P.2d at 1047.
¶28 In Kromko v. Superior Court, we addressed an analogous
argument. Relying on legislative history, the proponent of an
initiative argued that § 19-122(C) requires that challenges to
the Secretary’s decision to place a measure on the ballot be
filed within the same ten-day period as challenges under § 19-
122(A). Kromko, 168 Ariz. at 55, 811 P.2d at 16. We noted,
however, that such a reading would deprive challengers of any
statutory avenue for review of the Secretary’s decision to place
on the ballot a petition initially accepted subject to
verification under §§ 19-121.01 and 19-121.02. Id. at 56, 811
P.2d at 17. We refused to interpret the statutes in a manner
that would deprive citizens of “the means and opportunity” to
challenge the Secretary’s actions. Id.¶29 Similar concerns guide us here. Given the importance
of the initiative process, it is extremely unlikely that the
legislature would provide in § 19-122(A) a prompt remedy for the
Secretary’s failure to transmit a single facsimile sheet as
16
required by § 19-121.01, but provide no remedy at all for the
improper disqualification under the same statute of hundreds of
signature sheets. Nor do we believe that the legislature
intended that § 19-122(A) require a prompt challenge to the
Secretary’s decision to reject an entire petition because of
defects in a sufficient number of circulators’ affidavits, but
not govern judicial review of the Secretary’s decision to
disqualify a lesser number of sheets (but not enough to require
rejection of the petition) on identical grounds. Cf. Harris v.
City of Bisbee, 219 Ariz. 36, 39 ¶¶ 9-12, 192 P.3d 162, 165
(App. 2008) (holding that § 19-122(A) governs action attacking
town clerk’s invalidation of signature sheets and consequent
refusal to forward petitions to county recorder for verification
under § 19-121.01(B)-(C)).
¶30 We decline to conclude that Title 19 contains “no
machinery . . . by which the courts could review the [election
official’s] actions.” Kromko, 168 Ariz. at 55, 811 P.2d at 16.
Rather, the most reasonable interpretation of § 19-122(A) is
that it applies to challenges to the Secretary’s actions under
§ 19-121.01, including the disqualification of signature sheets
and signatures, and that the ten-day limitation period begins to
run when the Secretary issues her written statement explaining
her reasons for rejecting signature sheets and signatures.
17
C.
¶31 TIME argues that if § 19-122(A) is interpreted as
inapplicable to challenges such as the one before us, judicial
review of the Secretary’s § 19-121.01 disqualification of
signature sheets and signatures remains available under the
general mandamus statute, A.R.S. § 12-2021 (2003). That
provision authorizes actions “to compel . . . performance of an
act which the law specially imposes as a duty resulting from an
office.”
¶32 As an initial matter, we note that TIME’s claims
against the Secretary do not clearly fall within that statute.
We have described mandamus as available only “to require public
officers to perform their official duties when they refuse to
act.” Sears v. Hull, 192 Ariz. 65, 68 ¶ 11, 961 P.2d 1013, 1016
(1998) (quoting Smoker v. Bolin, 85 Ariz. 171, 173, 333 P.2d
977, 978 (1958)). In this case, TIME’s claim is not that the
Secretary refused to perform her statutory duties under § 19-
121.01(A) but rather that she erred in performing them.
¶33 But even if this problem is overlooked, a serious one
remains. Although our statutes do not expressly limit the time
within which mandamus and other extraordinary forms of relief
may be sought, we have long emphasized that a party may not
unreasonably delay in bringing such actions. See, e.g., Felix
v. Superior Court, 92 Ariz. 247, 250, 375 P.2d 730, 732 (1962).
18
Consequently, we have denied special action relief in election
cases when delay in filing an action is unreasonable. Sotomayor
v. Burns, 199 Ariz. 81, 83 ¶ 8, 13 P.3d 1198, 1200 (2000).
¶34 In the case before us, TIME was aware of the
Secretary’s reasoning for the § 19-121.01(A) disqualifications
by July 24, yet did not file suit until August 13, after the
county recorders had completed their § 19-121.02 certifications.
Under the statutory scheme, if the Secretary indeed erred in
some or all of her § 19-121.01(A) disqualifications, TIME would
only be entitled to two remedies: (1) correction of the
Secretary’s initial determination under § 19-121.01(A)(6) of the
number of signatures “eligible for verification” and (2) a
consequent increase in the number of signatures (and facsimiles)
included in the sample and forwarded to the county recorders for
verification. By delaying its action until after the recorder
verification process was completed, TIME at the very least made
difficult – and perhaps impossible – any remedy involving
further preparation of additional facsimiles by the Secretary
and review of randomly chosen signatures by the county
recorders. And, even assuming that such a process could have
been completed before the deadline for printing ballots, it
seems clear that effective judicial review of the recorders’
verifications – either at the trial or appellate level – simply
could not have occurred. See Harris v. Purcell, 193 Ariz. 409,
19
412-13 ¶ 17, 973 P.2d 1166, 1169-70 (1998) (noting that “[t]o
wait until the last moment [to challenge an election matter]
places the court in a position of having to steamroll through
the delicate legal issues in order to meet the deadline for
measures to be placed on the ballot”) (alterations in original).
¶35 Thus, if we were to accept TIME’s argument that
mandamus is the appropriate method for addressing its claims
against the Secretary, we would be required in virtually every
case to determine whether such claims were unreasonably delayed.
In contrast, § 19-122(A) expressly contemplates that suit be
brought at a time when, if the challenge is successful, the
superior court can order the Secretary to forward additional
facsimiles to the recorders for verification. There is no
significant harm to initiative sponsors in requiring that all
challenges to the Secretary’s § 19-121.01 determinations be
brought within ten days after notice of the reasons for such
actions is issued.8 The most reasonable reading of the statutory
8
TIME argues that challengers will face additional expense
if forced first to challenge the Secretary’s decisions under
§ 19-122(A) and then later to challenge the recorders’
certifications under § 19-121.03(B). It is not apparent to us
that significant extra expense will thereby be incurred, as
challengers in TIME’s position will be required in the end to
prove their claims against both the Secretary and the recorders.
Moreover, even under TIME’s “narrow” interpretation of § 19-
122(A), two separate suits would be required if the Secretary
improperly failed to transmit a specific facsimile sheet or
rejected an entire petition.
20
scheme is that claims that the Secretary erred in the execution
of her § 19-121.01 duties are governed by § 19-122(A), not the
general mandamus statute.
III.
¶36 For the reasons stated above, we hold that the
superior court correctly dismissed TIME’s claims against the
Secretary as time-barred under § 19-122(A).9
¶37 It is appropriate to add an additional word. We
respectfully suggest that Title 19 deserves a thorough
legislative reexamination. Even when, as here, election
officials act promptly and both sides are represented by
extraordinarily able counsel, the entire statutory scheme no
longer can always be followed. Even in a case not involving
litigation, the Maricopa County Recorder has candidly
9
Although TIME remained free under the superior court’s Rule
54(b) judgment to pursue its separate claims against the
Maricopa County Recorder, it did not do so before the deadline
for printing early ballots.
Without success in at least some of TIME’s claims against
the Recorder, even complete success against the Secretary would
not have resulted in placement of the initiative on the ballot.
TIME’s complaint alleged that the Secretary had improperly
disqualified 9,168 signatures. Assuming that TIME would have
succeeded in establishing that each signature was improperly
disqualified, the resulting number of signatures eligible for
verification under § 19-121.01(A)(6) would have increased to
248,042. But if the statewide error rate from the random sample
remained at 42.04 percent, this increased base number would
result in only 143,765 valid signatures, 93.74 percent of the
constitutional minimum.
21
acknowledged that she is unable to complete the signature-by-
signature verification process required by A.R.S. § 19-121.04(C)
in a timely fashion. See supra note 5 and accompanying text.
This is not a new problem; we confronted it more than a quarter
of a century ago in Save Our Public Lands Coalition, and
concluded that when an initiative is denied its statutory
entitlement to such review, the appropriate relief is to order
placement of the measure on the ballot. 135 Ariz. at 464, 662
P.2d at 139.
¶38 But whatever the practical necessity of that decision,
it would clearly be preferable for the legislature to modify the
statutory scheme in light of today’s realities to avoid such
structural problems. Our election officials are required to
process large numbers of initiative and referendum petitions.
The growth of the state’s electorate means that the number of
signatures submitted in order to qualify for placement on the
ballot has also steadily grown. And, even when the Secretary
and county recorders complete the verification process within
the statutory deadlines, the time for judicial review has been
shortened by the need to prepare ballots for early voting.
¶39 It is, of course, not within our constitutional
assignment to suggest specific legislative solutions to this
problem. And, if no change is made in the qualification
process, the judiciary will continue to decide election cases
22
with all appropriate celerity. But it is not, we think, beyond
our role to suggest that there may be a better way, and to
encourage the other branches of government to consider that
issue.
_______________________________________
Andrew D. Hurwitz, Justice
CONCURRING:
_______________________________________
Ruth V. McGregor, Chief Justice
_______________________________________
Rebecca White Berch, Vice Chief Justice
_______________________________________
Michael D. Ryan, Justice
_______________________________________
W. Scott Bales, Justice
23