We the People Ex Rel. v. Governor Doug Ducey

SUPREME COURT OF ARIZONA
WE THE PEOPLE OF THE STATE OF ) Arizona Supreme Court
ARIZONA ex rel., B.J.B., J.D.K., ) No. CV-21-0114-SA
T.R.P., B.E.S., E.B.S.JR., )
S.N.A., R.B.E., J.G.P., L.K.I., )
R.J.C., F.M.I., S.S., M.M.S., )
R.P.S., N.L.B., G.W., R.S., )
C.H.C.II., E.P.R., D.B.S., )
)
Petitioners, )
)
v. )
)
GOVERNOR DOUG DUCEY, SECRETARY )
OF STATE KATIE HOBBS, STATE )
TREASURER KIMBERLY YEE, MARICOPA )
SHERIFF PAUL PENZONE, PIMA )
SHERIFF CHRIS NANOS, PHOENIX ) FILED 05/11/2021
MAYOR KATE GALLEGO, TUCSON MAYOR )
REGINA ROMERO, MARICOPA RECORDER )
STEPHEN RICHER, SUPERINTENDENT )
OF PUBLIC INSTRUCTION KATHY )
HOFFMAN, CORPORATIONS )
COMMISSIONER ANA TOVAR, )
CORPORATIONS COMMISSIONER LEA )
MARQUEZ PETERSON, CORPORATIONS )
COMMISSIONER SANDRA D. KENNEDY, )
CORPORATIONS COMMISSIONER JUSTIN )
OLSON, DISTRICT 9 SENATOR )
VICTORIA STEELE, DISTRICT 10 )
SENATOR KIRSTEN ENGLE, DISTRICT )
25 REPRESENTATIVE RUSSELL BOWERS, )
DISTRICT 9 REPRESENTATIVE )
RANDALL FRIESE, DISTRICT 10 )
REPRESENTATIVE DOMINGO DEGRAZIA, )
DISTRICT 12 REPRESENTATIVE )
TRAVIS GRANTHAM )
)
Respondents. )
__________________________________)
O R D E R
On May 7, 2021 Petitioners filed a Petition for Review Special
Action in Writ of Quo Warranto, Affidavits of Identity & Intention,
Arizona Supreme Court No. CV-21-0114-SA
Page 2 of 5
Evidence, and a Motion to Seal/Redact Petitioners Names and Personal
Information.
Petitioners “We the People” are twenty individuals who
bring a “special action in writ of quo warranto” under A.R.S. § 12-
2043 against nineteen persons elected to hold municipal, county, and
statewide offices in 2018, 2019 (Tucson), and 2020. Petitioners
claim that the respondent office holders—“alleged usurpers”—are “in
office illegally” and, if not, the respondents should “prove
otherwise.”
Petitioners do not assert that they have asked the Attorney
General to bring the action under A.R.S. § 12-2041, but instead
advise that they bring the action because—as one of the respondents—
the Attorney General has a conflict of interest. Petitioners do not
assert that they ran for the offices they challenge or are otherwise
entitled to the office each seeks under A.R.S. § 12-2044, but instead
offer that “[a]ny Arizona resident meeting the minimum qualifications
is entitled to and has the right to be appointed to a seat in unusual
situations” in place of the respondents and that “they are as
entitled as anyone else to step in to help in a temporary way” if and
when the Court enters a “judgment of usurpation.” Petitioners seek
to proceed anonymously and ask the Court to seal their personal
information including their names, addresses, dates of birth, and
telephone numbers, advising they “will come forward more publicly as
the filing is reviewed and if brought to hearing.”
Arizona Supreme Court No. CV-21-0114-SA
Page 3 of 5
The Court, en banc, has considered the petition, the motion to
seal, and the request “for a full review in 5 days.”
A Statement of Contest is authorized under A.R.S. § 16-673 and
must be brought 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. A.R.S. § 16-673(A). “[F]ailure of [an
election contestant] to strictly comply with . . . statutory
requirements is fatal to his right to have [an] election contested.”
Donaghey v. Att’y Gen., 120 Ariz. 93, 95 (1978). “The rationale for
requiring strict compliance with the time provisions for initiating
[an election] contest is the strong public policy favoring stability
and finality of election results.” Id. “Election contests are
purely statutory and dependent upon statutory provisions for their
conduct.” Fish v. Redeker, 2 Ariz. App. 602, 605 (1966). Elections
will not be held invalid for mere irregularities “unless it [can] be
shown that the result has been affected by such irregularity.”
Territory v. Board of Sup’rs, 2 Ariz. 248, 253 (1887). The validity
of an election is not voided by honest mistakes or omissions “unless
they affect the result, or at least render it uncertain.” Findley v.
Sorenson, 35 Ariz. 265, 269 (1929). “Where an election is contested
on the ground of illegal voting, the contestant has the burden of
showing that sufficient illegal votes were cast to change the
result . . . .” Morgan v. Board of Sup’rs, 67 Ariz. 133, 143 (1948).
Petitioners argue that under the Help America Vote Act of 2002
Arizona Supreme Court No. CV-21-0114-SA
Page 4 of 5
(“HAVA”), the challenged elections “were illegally held, per the HAVA
law and corresponding state statute [A.R.S. § 16-442(B)], and
therefore null and void.” They claim that their action under 52
U.S.C. § 21112 “outlines” that their complaints be brought “at the
state level and remedy is to begin there.” Petitioners also advise
that they “are entitled and qualified to sit Pro-Tempore in usurpers
seats.”
Although our courts have recognized that electors may have an
implied private right of action to challenge voting machines’
compliance with applicable statutory requirements in certain limited
circumstances, see, e.g., Chavez v. Brewer, 222 Ariz. 309, 318 ¶ 28
(App. 2009), nothing in the statutes Petitioners cite grants them a
private right of action to remove office holders and sit in their
stead. In fact, in a quo warranto action, “a claimant to an office
may have judgment only on the strength of his own title and not upon
any infirmity or weakness in the defendant’s title.” Tracy v. Dixon,
119 Ariz. 165, 166 (1978).
The Court finds no legal basis for the relief requested. The
action as articulated is also untimely under A.R.S. § 12-673(A).
Therefore,
IT IS ORDERED dismissing the petition.
Petitioners also ask that they be allowed to proceed
anonymously. A quo warranto proceeding is initiated by verified
complaint, A.R.S. §§ 12-2041, 12-2043 and is a statutory special
Arizona Supreme Court No. CV-21-0114-SA
Page 5 of 5
action under Rule 1(b) of the Rules of Procedure for Special Actions.
In seeking a writ from this Court, petitioners must provide their
names, addresses and telephone numbers. Ariz. R. Spec. Act. Rules 1
and Rule 7(e).
Petitioners ask the Court to seal the information they submitted
in their affidavits. The Court’s Open Records Policy is set forth in
Arizona Rule of the Supreme Court 123. Rule 123(C) establishes what
information and records are confidential. Of the information
Petitioners submitted, the Court sees no legal basis to seal the
Petitioners’ information. Petitioners have until 5:00 p.m. on
Monday, May 17, 2021 to file a pleading to support their request.
Their affidavits will remain sealed pending further order.
DATED this 11th day of May, 2021.
/s/
JOHN R. LOPEZ IV
Duty Justice
TO:
Petitioners
nm