Staci Burk v. Doug Ducey ( 2021 )

SUPREME COURT OF ARIZONA
STACI BURK, a single woman, ) Arizona Supreme Court
) No. CV-20-0349-AP/EL
Plaintiff/Appellant, )
) Pinal County
v. ) Superior Court
) No. S1100CV202001869
DOUG DUCEY, in his official )
capacity as Governor of the )
State of Arizona, et al., ) FILED: 01/05/2021
)
Defendants/Appellees. )
__________________________________)
Decision Order
A panel consisting of Chief Justice Brutinel, Vice Chief Justice
Timmer, Justice Gould, and Justice Lopez has considered this election
appeal. The Court has considered the record, the trial court’s
December 15, 2020 minute entry, and the briefing of Appellant Staci
Ward and Appellees Maricopa County and the Secretary of State.
The Secretary duly certified the statewide canvass and, on
November 30, 2020, she and the Governor signed the certificate of
ascertainment for presidential electors, certifying that in Arizona
the Biden Electors received the highest number of votes cast and were
duly elected Presidential Electors.
Under A.R.S. § 16-673, an “elector contesting a state election
shall, within five days after completion of the canvass of the
election and declaration of the result thereof by the secretary of
state or by the governor, file in the court ... a statement in
Arizona Supreme Court No. CV-20-0349-AP/EL
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writing” that sets forth “[t]he name and residence of the party
contesting the election, and that he is an elector of the state and
county in which he resides,” along with “[t]he name of the person
whose right to the office is contested,” “[t]he office the election
to which is contested,” and “[t]he particular grounds of the
contest.” The statute also requires, in subsection B, “The statement
shall be verified by the affidavit of the contestor that he believes
the matters and things therein contained are true.”
The contest here failed, first, because Appellant is not a
qualified elector under A.R.S. § 16-121(A). Arizona law provides
that a person who is qualified to register to vote and who has
registered to vote is “deemed a qualified elector for any purpose for
which such qualification is required by law,” which would include
bringing a challenge under A.R.S. §§ 16-672 and -673. (Emphasis
added). See Kitt v. Holbert, 30 Ariz. 397, 400 (1926) (“It is ...
obvious that the statement of contest must set forth specifically
that the contestant is such elector.”). And although Appellant
argues that the cancellation of her voter registration was
questionable, she admits that she was well aware before the election
that she would not be able to vote in the general election. There is
nothing before the Court to indicate that Appellant timely contacted
the appropriate authorities to correct any problems with her voter
registration. An election challenge under A.R.S. § 16-672 is not the
proper vehicle to reinstate voter registration. We therefore affirm
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the trial court ruling granting the Appellees’ motion to dismiss
because Appellant was not a qualified elector who was statutorily
authorized to bring an action under A.R.S. § 16-673.
Second, Appellant failed to file a timely contest that complied
with the election challenge statutes. Because the time challenges in
election statutes are to be strictly construed, courts have
repeatedly held that the five-day limit for statutory election
challenges means five calendar days. See Smith v. Bd. of Dirs., Hosp.
Dist. No. 1, 148 Ariz. 598, 599 (App. 1985) (election contest) and
Bedard v. Gonzales, 120 Ariz. 19, 20 (1978) (nomination petition
challenge); accord Bohart v. Hanna, 213 Ariz. 480, 482 ¶ 6
(2006)(noting “the requirement that time elements in election
statutes be strictly construed” in a nomination petition appeal).
Notwithstanding the fact that the election contest statutes do not
include intermediate Saturdays, Sundays and legal holidays, “[t]he
court will continue to adhere to the rule that if the fifth day for
filing an election appeal falls on a Saturday, Sunday, or state
holiday, a notice of appeal will be deemed timely if filed on the
next business day.” Bohart, 213 Ariz. at 482 ¶ 7 n.2. Here, the
canvass was completed and declared on November 30, 2020; the five-day
deadline expired on Saturday, December 5, 2020, and a statutorily
compliant contest therefore needed to be filed no later than Monday,
December 7, 2020. Although Appellant filed her contest on December
7, it was not verified by the Appellant’s affidavit.
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Appellant argues that subsequent amendments cured any defect.
However, almost a century ago this Court held that “we are
constrained both by reason and authority to hold that a statement of
contest in an election contest may not be amended, after the time
prescribed by law for filing such contest has expired, by adding
thereto averments of a jurisdictional nature.” Kitt, 30 Ariz. at
406. Appellant asks the Court to excuse the statutory deadlines
because of personal circumstances, and she claims that enforcing the
statutory deadlines would “suppress this challenge on technicalities
and procedure.” However, election contests are “purely statutory and
dependent upon statutory provisions for their conduct.” Fish v.
Redeker, 2 Ariz. App. 602, 605 (1966). These technicalities are the
laws that govern election contests. See Donaghey v. Att’y Gen., 120
Ariz. 93, 95 (1978)(stating, “The failure of a contestant to an
election to strictly comply with the statutory requirements is fatal
to his right to have the election contested,” and observing, “The
rationale for requiring strict compliance with the time provisions
for initiating a contest is the strong public policy favoring
stability and finality of election results”). Likewise, “we are not
permitted to read into” the election challenge statute “what is not
there,” which would include the ability to file an untimely amendment
to meet the statutory verification requirement. Grounds v. Lawe, 67
Ariz. 176, 187 (1948). See also Kitt, 30 Ariz. at 400 (rejecting the
contestor’s attempt to amend the statement of contest to include an
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allegation that he was an “elector of the particular political
subdivision from which the officer whose election is contested is
chosen,” because “the statement of contest must set forth
specifically that the contestant is such elector,” notwithstanding
the contestor’s allegation that he was a citizen and resident of the
political subdivision).
Appellant correctly notes that the contest was not dismissed on
substantive grounds. We affirm the dismissal based on the lack of
standing and the failure to file a timely verified election contest.
We deny Appellees’ request for attorney fees under A.R.S. § 12-349
because the statutes are unclear about who is an “elector” that can
bring a challenge and the deadline to file the contest.
DATED this 5th day of January, 2021.
______/s/_______________
Robert Brutinel
Chief Justice
Arizona Supreme Court No. CV-20-0349-AP/EL
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TO:
Staci Burk
Brett William Johnson
Colin P Ahler
Derek Flint
Ian R Joyce
Roopali H Desai
D Andrew Gaona
Kristen M Yost
Thomas P Liddy
Emily M Craiger
Joseph I Vigil
Joseph Branco
Joseph Eugene La Rue
Kevin D White
Rebecca Padilla
Amanda Stanford
Kristi Youtsey Ruiz