There are a lot of moving parts to election administration, and it takes a lot of people to make them work. Not surprisingly, mistakes are made on occasion. The consequences of those mistakes often end up in court. In this article, we discuss the Arizona Supreme Court’s recent decision in Voice of Surprise v. Hall, which involved a city clerk who accepted an erroneous referendum application but then later rejected the referendum petitions because of this same error.
On August 16, 2022, the Surprise City Council passed an ordinance preliminarily approving a large development plan in the city. A political action committee (“committee”), which opposed the proposal, filed an application with the city clerk to circulate referendum petitions to refer the proposal to a citizen vote. This is the first step in the municipal referendum process.
The application, however, did not set forth the text of the challenged ordinance as required by statute, A.R.S. § 19-111(A). Although the city clerk realized the error, the clerk still accepted the application and issued the committee a serial number for the petition drive. Over the next 30 days the group gathered substantially more than the 3,114 minimum required number of signatures but at the developer’s urging, the clerk refused to accept the signed petitions based solely on the application error.
The committee filed a lawsuit in Maricopa County Superior Court asking the Court to compel the city to accept and process the petitions. The Court rejected the request and held that the committee’s failure to “strictly comply” with the statutory requirements was fatal to the referendum effort. The Arizona Court of Appeals affirmed the superior court’s decision. The Arizona Supreme Court approached the dispute differently and reversed the superior court’s ruling, holding that the city clerk erred in rejecting the petition sheets due to the application error.
The Court first rejected the committee’s argument that its failure to strictly follow the application requirements merely destroyed the presumption of validity that the petitions enjoy, which ordinarily shifts the burden to the referendum proponent to otherwise demonstrate compliance with the law. The Court held that the presumption only applies when statutory errors occur during the signature-gathering process and does not apply to the application process — the requirements of which must be strictly adhered to by referendum proponents.
However, the Court held that the city clerk merely performs a ministerial role in accepting referendum applications and must “accept and process any filled-in application submitted on the statutorily required form without regard to its legal sufficiency.” Thus, the city clerk had no authority to reject the petitions at issue here even with the known violation, and moreover, the clerk had no obligation to tell the committee about its mistake.
The Court then addressed the issue regarding the extent of an election official’s obligation to enforce election administration laws the official knows have been violated. In the situation involving a referendum application that does not strictly comply with the law as required by A.R.S. § 19-101.01, the Court held that the city clerk cannot reject an application or petitions on that basis, but the city clerk could bring her own lawsuit to challenge the proponent’s compliance under A.R.S. § 19-122(C), which allows “any person” to contest the validity of a referendum. Such challenges are typically brought by private parties, not government officials. This is a notable holding, as it is a rare case that turns the “strict compliance” requirement in A.R.S. § 19-101.01 — which is often used as a tool to challenge referenda — against a party that challenged a referendum.
The Arizona Supreme Court opinion did not end this case. Although the Court held that the committee’s referendum application did not strictly comply with A.R.S. § 19-111(A), and that error cannot be undone, the Court remanded the case to the superior court to provide the committee an opportunity to raise any applicable equitable defenses to the developer’s counterclaim seeking to invalidate the referendum, which will likely include a “laches” defense that the counterclaim was brought too late. The Court also noted that its opinion did not preclude any defendant from challenging the petitions on any other bases, so whether this referendum qualifies for the ballot must still be determined by the superior court.
In this case the election official’s mistake alone did not prove fatal to the referendum effort. The case makes clear that election officials, at least in the referendum context, must perform their duties in a ministerial matter even if they believe the proponents have not strictly adhered to the legal requirements. In this situation, the city clerk can accept the petitions and let someone else like the developer bring a legal challenge, or bring a legal challenge on behalf of the city against the referendum proponent, but only after accepting the filing.
For those stakeholders who oppose a referendum effort and are aware of statutory defects with the referendum process, this case stands for the proposition they must bring a lawsuit under A.R.S. § 19-122(C) to challenge the referendum rather than simply bringing the defects to the attention of the city clerk.
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