El Pacion v. Thomas/Bowie v. Huppenthal – 8/2/2010

August 13, 2010

Arizona Supreme Court, in Division, Holds That Disqualification of Signatures on an Electoral Candidate’s Nominating Petition is Not the Proper Remedy If Signatures Are Collected When a Candidate Has Established an Exploratory Committee, But Not a Campaign Committee.

Two different plaintiffs (the “contestants”) brought separate special actions in superior court against various candidates who had submitted nomination petitions with signatures collected before the candidate had formed a campaign committee pursuant to A.R.S. § 16-903(A). The signatures were instead collected when the candidates had only created an exploratory committee pursuant to A.R.S. § 16-903(B). The two special actions sought to enjoin the placement of the candidates’ names on the primary ballot. The superior court consolidated the two special actions and denied relief. The judge found that while the candidates had violated A.R.S. § 16-903(A), disqualification of signatures on their nominating petitions was not the proper remedy and that only a civil penalty under A.R.S. §§ 16-903 and 16-924 could be imposed. The contestants appealed, and one of the candidates cross-appealed. The Supreme Court, with Vice Chief Justice Hurwitz and Justices Ryan and Pelander sitting in the division, heard the appeal.

The Supreme Court affirmed the superior court. The Court refused to resolve the question of whether it is a violation of A.R.S. 16-903(A) to circulate nominating petitions before forming a campaign committee. The Court held that even assuming that such a practice did violate the statute, the only remedy is a civil penalty because Title 16, Chapter 6 does not contain any provision authorizing a court to strike signatures which are obtained before a campaign committee is formed. The Court rejected the contestants’ arguments that A.R.S. § 16-351 authorizes injunctive relief against candidates and that A.R.S. § 16-351(B) authorizes disqualification. The Court also rejected the contestants’ argument that the signatures should be stricken because collecting signatures before a campaign committee is formed violates Arizona’s “resign to run” law, A.R.S. § 38-296(A).

Vice Chief Justice Hurwitz authored the opinion; Justices Ryan and Pelander concurred.