McClung v. Bennett – 8/6/2010

August 13, 2010

Arizona Supreme Court Holds That Nomination Petition Challenger May Not Raise at Hearing New Grounds to Challenge Petition Signatures Without Advance Notice to Other Affected Parties.

Challenger contested the number of valid signatures on the nomination petition filed by a candidate for the U.S. House of Representatives (the “Candidate”).  Following reviews of the challenged signatures by the Pima County Recorder and Santa Cruz County Recorder, the Candidate’s petition was found to have 386 valid signatures — five more than the minimum required.       

The superior court held an evidentiary hearing.  During the hearing, and without advance notice to the other parties, Challenger raised new grounds, not alleged in the complaint, to challenge some of the signatures.  The trial judge refused to allow Challenger to assert the new grounds, finding that to allow the new challenges would deny the Candidate’s due process right to a fair hearing.  The trial court also concluded that, were it to reach the merits of the new challenges, the Candidate’s petition would still have the minimum required number of valid signatures. 

Challenger appealed. 

The Arizona Supreme Court affirmed.  A party challenging a nomination petition must specify the basis for contesting the validity of each challenged signature.  A.R.S. § 16-351(A).  The challenger has the burden of proving by clear and convincing evidence that a challenged signature is not that of a qualified elector.  A challenger who wishes to contest signatures for reasons other than those identified in the complaint and the county recorders’ reports must notify the affected parties and the court.

In addition, Challenger failed to demonstrate that the trial court erred in its conclusion that Candidate’s petition contained the required minimum number of valid signatures.  Finally, Challenger’s delay in appealing the superior court’s ruling on the last day of the statutory deadline had left the Candidate with only one day to file his response brief; the appeal therefore warranted dismissal on the separate grounds of laches.

Chief Justice Berch authored the opinion; Justices Bales and Pelander concurred.