2019 Legislation & Case Law Update

1. 2019 Legislation &Case Law Update AMCA Summer 2019 Conference Wednesday, July 24, 2019 Christina Estes-Werther, General Counsel League of Arizona Cities and Towns

2. Election Bills All bills are effective on the general effective date of August 27, 2019.

3. HB 2023 (Laws 2019, Ch. 27) (Kavanagh)political signs; ballot measures; tampering BACKGROUND • A.R.S. § 16-1019 prohibits a person from tampering (knowingly removing, altering, defacing or covering) any candidate sign (Class 2 misdemeanor). PROVISIONS (A.R.S. § 16-1019) • Expands the tampering classification and penalty to include signs that are in support or in opposition to any ballot measure, question or issue. This does not apply to a person authorized by the committee of the ballot measure. • Specifies that the prohibition on a person tampering with a candidate sign ends 7 days after the primary election if the candidate does not advance from the primary to the general election. NOTE: This timeframe applies to a person. Cities and towns must abide by subsection H, which specifies that the municipality cannot remove a sign for a candidate who does not advance to the general election until 15 days after the primary election. House Third Read: 2/26/19 60-0; Senate Third Read: 3/18/19 30-0; Signed 3/22/19

4. HB 2039 (Laws 2019, Ch. 282) (Townsend)elections; federal form; emergency voting BACKGROUND • If a person submits a valid voter registration form without accompanying documentary proof of citizenship, the person may be registered as a “federal-only” voter based on the person’s sworn statement that he or she is a U.S. citizen. PROVISIONS (A.R.S. § 16-161) • Requires the county recorder to report to the Secretary of State and post on the recorder’s website, 1) the number of registered voters (using either the federal or state voter registration form) who have not provided proof of citizenship; and 2) after each general election, the number of ballots cast by those persons who voted a ballot containing only federal offices. • The bill made a technical correction to an earlier bill (S.B. 1090) and clarifies that a person who becomes ill or disabled prior to an election and requests a ballot to be delivered by a special election board must sign a statement that the emergency occurred after 5:00 p.m. on the second Friday, rather than the first Friday, immediately before the election. House Third Read: 3/11/19 31-29; Senate Third Read: 5/27/19 17-12-1; House Final Read: 5/27/19 31-29; Signed 6/7/19

5. HB 2133 (Laws 2019, Ch. 242) (Thorpe)voter registration; updates; internet address BACKGROUND • If nonforwardable first class election mail is returned undelivered to the county recorder, a follow-up notice with instructions about updating the voter’s registration must be sent to the address that appears on the general county register or forwarding address provided by the postal service. PROVISIONS (A.R.S. § 16-166) • Requires the county recorder to include in the follow-up notice how the elector can revise the voter registration information online and failure to update the form in print or online may result in an inactive registration status. • The online registration form must include a change of address form. • If the elector’s new address is in a different county, the recorder must forward the information to the appropriate county. House Third Read: 2/27/19 58-1-1; Senate Third Read: 5/15/19 29-0-1; Signed 5/22/19

6. HB 2134 (Laws 2019, Ch. 284) (Cobb)municipal elections; write-in candidates BACKGROUND • Cities and towns have been following state law that requires a write-in candidate to receive a minimum amount of votes equivalent to the number of signatures required for nominating petitions for the same office. Last year, a judge in Kingman held against the City for following this practice because there was no explicit language allowing a nonpartisan election to adhere to this requirement. PROVISIONS (A.R.S. §§ 9-821.01, 16-645) • Requires a write-in candidate in a nonpartisan election to receive at least the same number of votes as the number of signatures required for nominating petitions for the same office in order to advance to a runoff election or obtain a certificate of election. House Third Read: 2/27/19 57-3; Senate Third Read: 5/22/19 30-0; Signed 6/7/19

7. HB 2236 (Laws 2019, Ch. 127) (Townsend)county recorder; candidate petition BACKGROUND • Historically, election officials are often called to testify in court on an expedited schedule for candidate challenges. PROVISIONS (A.R.S. § 16-351) • Codifies the long-standing practice that a county recorder or other election officer must perform petition signature verification for candidate nomination petition challenges and provide testimony and other evidence on request of any of the parties to the challenge. NOTE: There should not be any changes to current practice. House Third Read: 2/26/19 60-0; Senate Third Read: 4/17/19 29-0-1; Signed 4/24/19

8. HB 2721 (Laws 2019, Ch. 80) (Lawrence)town elected officials; term limits BACKGROUND • Recently a trial court judge held that term limits could not be imposed via initiative on town council members because it was not expressly allowed by law. PROVISIONS (A.R.S. § 9-232.05) • Allows the voters of a town to enact, enforce or repeal by initiative term limits for mayor or council members and specifies it applies to any mayor or council member elected after the date the voters approved the initiative. House Third Read: 2/28/19 50-10; Senate Third Read: 4/4/19 23-6-1; Signed 4/11/19

9. HB 2238 (Laws 2019, Ch. 99) (Townsend)election procedures; manual BACKGROUND • State law requires the Secretary of State to submit the Instructions and Procedures Manual for review to the Governor and Attorney General at least 90 days before the election; and for the Manual to be issued 30 days prior to the election. PROVISIONS (A.R.S. § 16-452) • Changes the deadlines by requiring the Manual to be reviewed by the Governor and Attorney General by October 1 of the year before the general election; and requiring the Manual to be finalized by December 31 of each odd-numbered year immediately preceding the general election. House Third Read: 3/4/19 59-0-1; Senate Third Read: 4/15/19 28-0-2; Signed 4/17/19

10. SB 1054 (Laws 2019, Ch. 39) (Ugenti-Rita)early ballots; deficiencies; cure period BACKGROUND • Counties had different policies about handling inconsistent signatures on early ballot affidavits. PROVISIONS (A.R.S. §§ 16-445, 16-550, 16-621) • Establishes a 5-day time period for an election that includes a federal office, or a 3-day time period for other elections, to allow a voter to correct or confirm the signature on an early ballot affidavit if notified by the county recorder or election officer of an inconsistency (does not apply to special taxing districts or special district mail elections). • Allows the county to being tabulation of early ballots 14 days, instead of 7 days, before the election. • Requires interested persons or groups who want to observe the tabulation to give notice to be included in the draw 17 days, instead of 10 days, before the election. Senate Third Read: 2/11/19 30-0; House Third Read: 3/21/19 59-0-1; Senate Final Read: 3/27/19 29-0-1; Signed 4/1/19

11. SB 1072 (Laws 2019, Ch. 15) (Ugenti-Rita)early voting centers; identification required BACKGROUND • State law allows counties to establish voting centers. PROVISIONS (A.R.S. §§ 16-411, 16-542) • Requires a voter at a voting center, including early voting locations, to present identification (same day as election day ID requirements) in order to receive a ballot. • The county recorder or election officer may allow the voter to update the voter registration information pursuant to instructions from the State Procedure Manual. Senate Third Read: 2/14/19 17-13; House Third Read: 3/18/19 31-27-2; Signed 3/22/19

12. SB 1090 (Laws 2019, Ch. 107) (Ugenti-Rita)emergency voting procedures; board action BACKGROUND • State law allows the county recorder to establish a manner of voting early for voters who experience an emergency before the election. PROVISIONS (A.R.S. §§ 16-411, 16-542) • Requires a person who experiences an emergency to provide identification (same day as election day ID requirements) and sign a statement under penalty of perjury that states the emergency occurred after 5:00 p.m. on Friday and before 5:00 p.m. on Monday immediately preceding the election that would prevent the person from voting at the polls. This includes special election boards who travel to provide an early ballot to a person who is ill or disabled (see HB 2039). • The voter’s signed statements is not subject to inspection under public records law. • Changes the authority to establish emergency voting centers from the county recorder to the board of supervisors. • By resolution the board must specify the locations and hours of operation, and if a center is established and becomes unavailable, the county recorder or election officer may change the center location and notify the public and BOS as soon as possible. The alternate emergency voting center must be close in proximity to the approved location. Senate Third Read: 2/27/19 16-14; House Third Read: 4/8/19 31-27-2; Senate Final Read: 4/11/19 16-13-1; Signed 4/17/19

13. SB 1154 (Laws 2019, Ch. 246) (Gowan)primary date; first August Tuesday BACKGROUND • The fall primary election date is the tenth Tuesday prior to the first Tuesday after the first Monday in November. • The candidate nomination filing period is 90-120 days before the primary election. PROVISIONS (A.R.S. §§ 16-168, 16-201, 16-204, 16-206, 16-226, 16-311, 16-314, 16-322, 16-341, 16-411, 16-412, 16-803, 16-804, 16-821) • Beginning in 2020, the fall primary date is moved to the first Tuesday in August and the candidate nomination filing period is moved to 120-150 days before the election. • Requires a city or town not holding an election concurrently with the state’s general election to call their election no later than 150 days before the election (moved from 120 days). This does not apply to recall elections. Note: This date change does not require a call or publication.

14. SB 1154 (Laws 2019, Ch. 246) (Gowan)primary date; first August Tuesday PROVISIONS (continued) • Charter cities with charter provisions that conflict with the primary date and petition deadline changes may call an election in August or November 2019 with only a 90-day notice to the counties. • The 2020 candidates who are collecting signatures on a nomination petition before the general effective date (August 27, 2019) may lawfully submit those signatures even if the petition form includes the former primary election date. Those signatures cannot be ruled invalid due solely to the changed date of the primary election. • The bill adjusted dates for precincting, voter registration reports and the report used by the State and counties for signature calculation. Senate Third Read: 3/6/19 28-2; House Third Read: 5/14/19 39-21; Senate Final Read: 5/16/19 24-2-4; Signed 5/22/19

15. SB 1451 (Laws 2019, Ch. 315) (Leach)statewide ballot measures; circulators; procedures BACKGROUND • In 2016, state law removed the requirement for candidates to submit a threshold exemption statement and exploratory committees were eliminated. • Nonresident circulators for ballot measures are required to register with the Secretary of State. PROVISIONS (A.R.S. §§ 16-411, 16-542) • Requires a person to file a Statement of Interest prior to collecting a signature on a nomination petition. The Statement must include the name of the person, the political party, if any, and the name of the office that may be sought. • Specifies that signatures are invalid if collected prior to the filing of the Statement except candidates who are currently circulating may file their Statement by January 2, 2020 to maintain the validity of the signatures. The Statement is not required for special taxing districts, precinct committeeman, and President and Vice President of the United States. • Specifies that the only circulators required to register with the Secretary of State are for statewide initiative and referendum measures (nonresident circulators and paid circulators). • The bill contains several other changes to the circulator requirements for statewide initiative and referendum measures – these do not apply to cities and towns. For example, a paid circulator registration number is not required on the petition sheets in A.R.S. §19-121.01 because it is not applicable to city and towns ballot measures. Senate Third Read: 3/6/19 17-13; House Third Read: 5/8/19 31-29; Senate Final Read: 5/24/19 16-10-4; House Final Read: 5/24/19 31-29; Signed 6/719

16. Other Clerk-Related Bills

17. HB 2445 (Griffin) TPT residential rentals; notice Laws 2019, Ch. 53 HB2453 (Griffin) land use plans; contents; aggregates Laws 2019, Ch. 212 HB2501 (Blackman) electronic records; state library Laws 2019, Ch. 275 Requires cities and towns to provide at least a 60-day notice to residential rental property owners of voter approved tax changes affecting their property. Requires city and town general plans to include information on how to locate existing aggregate mines from the Arizona Geological Survey (AGS), consideration of existing mining operations, and suitable geologic resources; and requires the AGS to annually update their database relating to existing mines for cities and towns. Directs the state library to establish, operate and maintain a trusted electronic records repository, including electronic records received from municipalities.

18. HB2281 (Weninger) liquor omnibus Laws 2019, Ch. 136 • Makes numerous changes to liquor laws including: • allowing a licensed producer or wholesaler to make a monetary donation to a non-profit entity with a special event license to help sponsor the event • using biometric identity verification devices to establish age for the purpose of alcohol sales or entrance to a licensed premises. • establishing a “joint premises permit” that allows two or more on-sale licensees to establish a shared patio subject to certain location and application requirements, including local review of the application and security plan, and allows the local government to provide advisory recommendations to the Director of Department of Liquor Licenses and Control (DLLC). • allowing the Director to establish guidelines for a pilot program and issue up to ten licenses that allow regional shopping centers based on certain parameters and allows the local governing body to review the application and provide advisory recommendations to the Director.

19. SB 1030 (Leach) remote online notarization; registration Laws 2019, Ch. 56 SB 1261 (Livingston) lobbyists; filings; attestations Laws 2019, Ch. 218 Requires lobbyist registration and expenditure reporting forms to be filed under penalty of perjury, rather than under oath or with a notarized form. • Establishes remote online notarization with rules to be adopted by the Secretary of State by July 1, 2020. • Other provisions include actions when a notary application is denied and an appeal is pending or when a notary commission is suspended. • If only one notary public journal is kept, it is presumed to be public record.

20. Vetoed HB2473 (Kern) state liquor board; membership HB2677 (Kern) JLAC; auditor general SB1164 (D. Farnsworth) ombudsman-citizens aide; executive session; access Requires one of the seven members of the Arizona Liquor Board to be appointed from a list of nominees provided by the League to the Governor. Modifies requirements relating to the Office of the Auditor General (OAG) audits, investigations, powers and duties. If the Auditor General was investigating a city or town in official capacity, the city or town was required to provide reasonable and needed facilities and make records available. Authorizes the Ombudsman-Citizens Aide to access records and information relating to executive sessions.

21. Potential 2020 Statewide Ballot Measures • Approximately 20 statewide applications filed; several recreational marijuana and drug initiatives; others involve requiring a toll on the HOV lanes, banning red light cameras, lowering the drinking age to 18, prohibiting taxes on cryptocurrency, limiting the interest rate on title loans, etc. https://apps.azsos.gov/election/2020/general/initiatives.htm • The American Dream Act: eliminates all property taxes on the Arizona primary legal residence of United States Citizens over the age of 65. • Voter’s Right to Know Amendment: a constitutional amendment requiring disclosure of spending more than $20,000 on a statewide campaign or $10,000 on a local campaign must disclose contributions of $5,000 or more used to fund campaign expenditures; major contributions must be tracked to their original sources; a non-partisan, voter-established commission will write and enforce rules to implement this amendment.

22. Case Law UpdateState Court Decisions

23. Morales v. Archibald CV-19-0065-T/AP (April 25, 2019) Recall • A recall was filed against District 7 Phoenix Councilmember Nowakowski; the clerk verified the petition had sufficient signatures to be placed on the ballot; • An elector, Morales, filed a challenge alleging: • 1) committee failed to attach the official text of the recall (date-and-time-stamped copy of the application) to petition sheets in violation of A.R.S. §§ 19-202.01(D) and 19-203(D) ; • 2) a copy of the petition form was not attached to the application in violation of A.R.S. § 19-202.01(B),(C); and • 3) the petition sheets did not include language required by A.R.S § 19-204(A). • The Supreme Court found there was no statutory authorization for Morales to challenge the last two issues because A.R.S § 19-208.04(B) only authorizes challenges against the validity of signatures. However, the Court affirmed the trial court’s ruling enjoining the recall election and held the recall was ineligible for the ballot because any petition signature sheet not attached to a copy of the time-and-date-marked application must be removed from the verification process.

24. Watkins v. City of KingmanCV2018-01124 (September 24, 2018) Write-In Candidates • The City of Kingman held a primary election with regular ballot candidates and write-in candidates. When determining the majority votes calculation, the City applied A.R.S. § 16-645, which requires a write-in candidate to receive a minimum number of votes equivalent to the number of signatures required for that office resulting in write-in candidates who were ineligible to proceed to the runoff. • A lawsuit was filed and the court found that A.R.S. § 9-821.01 governed the City’s nonpartisan elections and the requirement in A.R.S. § 16-645 does not apply. The court ordered the write-ins to be placed on the runoff ballot. • H.B. 2134 addressed this issue so it is clear that minimum requirement of votes is required for nonpartisan write-in candidates.

25. AZ Advocacy Network et al., v. State of ArizonaCV2017-096705 (December 3, 2018) Campaign Finance • A lawsuit was filed alleging that SB 1516 (campaign finance law) violated the Voter Protection Act as it relates to the Clean Elections Act. • A Maricopa superior court judge ruled the following provisions of the law were unconstitutional and unenforceable: • 16-911(B)(4) Exempts from contribution a political party payment for party nominees and coordinated party expenditures. • 16-911(B)(6)(c): Exempts from contribution the value of any payment of a committee's legal or accounting expenses by any person.  • 16-921(B)(4)(c): Exempts from expenditure the value of any payment of a committee's legal or accounting expenses.  • 16-921(B)(7): Exempts from expenditure the value of any payment for legal or accounting services that are provided to a committee.  • 16-928(A)(1): The Secretary of State is the filing officer for certain state measures. • 16-938(A): Requires a complaint from a third party and the filing officer is the sole public officer who is authorized to initiate an investigation into alleged violations of campaign finance law.  Investigations are limited to those within the filing officer's jurisdiction. The filing officer may declare a conflict of interest and refer the investigation to any other filing officer in this state who agrees to accept the referral. • The case has been appealed. This case more significantly affects the State and any partisan elections. For cities and towns, legal and accounting expenses may be considered contributions and expenditures; and initiation of campaign finance investigations is no longer limited by third party written complaints. The remaining enforcement statute in 16-938 remains operative so it should not affect your ability to make reasonable cause determinations or conduct your enforcement mechanisms. • Talk to your attorney before the next election!

26. John Crane v. Les PetersonCV2018-006012 (May 16, 2018) Local Initiative/Term Limits • A proposition was adopted by the voters of Carefree in a March 2011 election that applied term limits to the mayor and council. • In 2018, the mayor ran for another term despite the term limit and a challenge was filed. • The trial court held that as a general law town, Carefree possesses no greater powers than those delegated to them by the constitution and general laws of the state. Here, the Legislature did not expressly empower towns to impose term limits and the mayor was allowed to run for office. • H.B. 2721 (2019) allows term limits to be established by initiative.

27. Arizona Chapter of the Associated General Contractors of America, et al., v. City of PhoenixCV2019-000604 (April 10, 2019) Local Initiatives/Circulators • The plaintiff contests the validity of a light rail initiative and sought an injunction to prevent the Clerk from placing the measure on the ballot alleging: • 1) the description violated A.R.S. § 19-102 because it is unclear and misleading; and • 2) all signatures collected by paid circulators must not be counted because of the prohibition that circulators cannot be paid by signature under A.R.S. § 19-118.01. • The Court held that the description fairly captures the matters of primary importance in the initiative and is not intended to fully advise the signers of all the impacts of the measure. Further, there was no “significant danger of confusion or unfairness” since the description directs the signed to the attached text. • Additionally, the Court found that the paid circulator prohibition does not apply to cities and towns since the statute clearly states that the prohibition only applies “on a statewide initiative or referendum petition.”

28. Stanwitz v. Reagan245 Ariz. 344 (November 21, 2018) Initiatives/Circulators • Plaintiffs challenged the Outlaw Dirty Money PAC’s submission of initiative signatures that would amend the Arizona Constitution to required disclosure of the original source of campaign contributions. The plaintiffs allege the petition circulators’ registrations were defective. • The plaintiffs subpoenaed 15 petition circulators to testify and served the guard at the entry of the office building listed as the address on the circulators’ affidavits. When the circulators failed to appear, the trial court struck their petition sheets and rendered the measure ineligible for the ballot. • On appeal, the Court did not weigh in on the strict compliance standard for initiatives, but affirmed the trial court’s judgment and held that the subpoena provision is constitutionally valid because it ensures the integrity of the signature gathering process by reasonable means and the service of process was properly executed.

29. Leach v. Reagan245 Ariz. 430 (December 6, 2018) Initiatives/Statement of Org/Circulators • The plaintiffs alleged that the Clean Energy for a Healthy Arizona political action committee (PAC) failed to obtain enough valid signatures alleging the PAC failed to identify its primary financial backer as a sponsor on the Statement of Organization; the measure’s title was deceptive; and the paid circulators failed to comply with registration requirements. • The Court held that the plaintiffs had no authority to challenge the alleged Statement of Organization noncompliance under Title 19 because Title 16 remedies exist by filing a campaign finance complaint with the Secretary. The Court emphasized that the Secretary was statutorily required to assign an official serial number upon filing of the application and there is no mandate for the filing officer to investigate a Statement’s compliance or reject a Statement of Organization. • The Court found the measure had sufficient number of signatures to be on the ballot because the title was not deceptive and accurately stated that the measure affects “electricity providers” and was not misleading. • Further, the Court held that the circulators were not “paid circulators” as defined in A.R.S. § 19-118(F)(1) because the definition requires that the person be compensated based on the number of signatures collected or petitions circulated and these circulators were paid hourly. (Note: the definition was changed in HB2648 (2018) to define a paid circulator as a person who receives any compensation).

30. Molera v. Reagan245 Ariz. 291 (October 26, 2018) Initiative • Petitioners brought a special action challenging the Invest in Education ballot measure alleging that • 1) a third party pre-marked the circulator box (paid or volunteer) instead of the circulator in violation of the strict compliance standard; • 2) the description on the petitions was misleading. • The trial court found the strict compliance standard for statewide initiatives violates the people’s power to legislate via initiative and found the description to be sufficient and the measure was eligible for the ballot. • The petitioners appealed the description issue and the Supreme Court reversed and held the description failed to disclose the measure’s impact and was a fatal omission of a principal provision that rendered the measure invalid. The Court did not opine on the strict compliance standard.

31. Hoffman v. Reagan245 Ariz. 313 (November 1, 2018) Referendum • Petitioners sought to enjoin the Secretary from placing a legislatively referred referendum on the ballot arguing that it violated the Article 4, Part 2, Sec. 13 of the Arizona Constitution’s single subject rule (“every act shall embrace but one subject…which subject shall be expressed in the title”). • The court dismissed the action and the petitioners appealed. • The Supreme Court affirmed the trial court ruling and held the referendum met the constitutional requirement because the two provisions (preventing the transfer of clean election funds to political parties and subjecting the Clean Elections Commission’s rules to the Governor’s Regulatory Review Commission) are both reasonably related. The measure was eligible for the ballot (and subsequently passed).

32. Using Public Resources to Influence an ElectionA.R.S § 9-500.14 • The Attorney General’s Office sent letters to several jurisdictions, including towns, alleging that the council’s actions adopting a resolution opposing Prop 127 (statewide clean energy initiative) were in violation of A.R.S. § 9-500.14. • The statute stipulates that “[a] city or town shall not spend or use its resources, including the use or expenditure of monies, accounts, credit, facilities, vehicles, postage, telecommunications, computer hardware and software, web pages, personnel, equipment, materials, buildings or any other thing of value of the city or town, for the purpose of influencing the outcomes of elections.” • “Influencing the outcomes of elections” means supporting or opposing a candidate for nomination or election to public office or the recall of a public officer or supporting or opposing a ballot measure, question or proposition, including any bond, budget or override election and supporting or opposing the circulation of a petition for the recall of a public officer or a petition for a ballot measure, question or proposition in any manner that is not impartial or neutral. • The individual members of the council were each subject to a civil penalty.

33. Candidate Challenges • A community college district candidate was removed for failing to comply with A.R.S. § 16-314(D) requiring the expiration date of the term since the candidate was seeking to fill an unexpired vacant term. Alcocer v. Bartning, CV-18-0236-AP/EL • A legislative candidate failed to submit enough valid signatures for the ballot; the Court noted that they were “troubled” by the county recorder’s testimony that his testimony and verification of the candidate’s signatures was a courtesy and he would likely discontinue the work. (See HB2236) McGee v. Syms, CV-18-0162-AP/EL • Plaintiff challenged nomination petitions of a justice of the peace candidate for failure to include the precinct information and alleged that the candidate did not reside in the jurisdiction. The Court found the nomination petitions substantially complied with the law since the position was listed and only qualified electors from the precinct signed the petition; further the Court found that home ownership is not required for residency and the candidate’s evidence of rental receipts, utility bills, voter registration record, and a bank account with the address along with church and community engagement was sufficient to show “actual physical presence…with an intent to remain” in compliance with A.R.S. § 16-101(B). Myers v. Salazar, CV-18-0166-AP/EL

34. Candidate Challenges • A lawsuit was filed alleging that a legislative candidate owed more than $1,000 in campaign finance penalties from his previous attempt to run for city council in violation of A.R.S. § 16-311(I). The candidate missed several campaign finance reports during the local election cycle but eventually paid the fines to the clerk prior to the 2018 election. The Court held that the statute did not apply because “liable” requires actual imposition and enforcement of the penalties under A.R.S. §§ 16-937 and 16-938 and here, the candidate was never referred to the city attorney for enforcement. Reyes v. Palacio, CV-18-0157-AP/EL • A Yuma legislative candidate was challenged when it was alleged that he did not reside in the district. The Court found he was a resident because he had “actual physical presence” in the district and an “intent to remain” despite other evidence that showed he lived in another part of the state (his mail was forwarded to Phoenix from Yuma, there was no electricity at the Yuma address, the candidate’s wife resided in Phoenix, the Phoenix residence is listed as a primary residence for tax purposes, the lease on the Yuma rental is month-to-month, and he does not own real property in Yuma). Backus v. Shooter, CV-18-0152-AP/EL

35. Case Law UpdateFederal Court Decisions

36. Tedards v. Ducey2019 WL 2646627 (D. Ariz. June 27, 2019) Vacancy • Governor Ducey appointed Martha McSally to fill the vacancy created when Senator John McCain died in August 2018. Plaintiffs challenged the constitutionality of A.R.S. § 16-222, which requires the Governor to appoint a person to fill the vacancy of United States senator who is the same political party as the person vacating the office and serves until the next general election. • The District Court held that there was no violation of the First or Fourteenth Amendment rights to vote in the direct election of their senator because the Seventeenth Amendment and the Elections Clause allows states to establish a time, place and procedures for special elections in the event of a vacancy in the senate. “Moreover, the State’s interests in avoiding excessive costs, lessening voter confusion, and increasing voter turnout are substantial interests that result in reasonable and non-severe restrictions (if any) on Plaintiffs' rights to vote.” • The Court found the statute constitutional, and granted the Defendant’s motion to dismiss the case.

37. Democratic Nat’l Committee v. Reagan904 F.3d 686 (9th Cir. 2018) Ballot Harvesting/Precinct Voting • HB2023 (2016), codified in A.R.S. § 16-1005, prohibits a person from knowingly collecting a voted or unvoted early ballot from another person (with certain exceptions including family members or caregivers). A violation is a Class 6 felony. • The Democratic National Committee and other PACs challenged A.R.S. § 16-1005 and the out-of-precinct policy requiring that in-person voters cast their ballots in their assigned precinct were violations of the federal Constitution and Voting Rights Act (VRA). After a bench trial, the District Court found in favor of state officials. Plaintiffs appealed. • The 9th Circuit Court of Appeals held that • 1) restrictions on third-party ballot collection imposed minimal burden and was a reasonable means for advancing state's interests, would not give minority voters less opportunity to elect representatives of their choice, and the Legislators acting with a partisan purpose was not a discriminatory (racial) purpose under the Fifteenth Amendment. • 2) out-of-precinct policy imposed only minimal burden on the right to vote and did not cause minority voters to have less opportunity than rest of electorate to participate in political process and elect their preferred representatives. • The 9th Circuit sat en banc, granted a rehearing and vacated the panel opinion; oral arguments were heard by the full court on March 27, 2019 and a decision is pending.

38. Knox v. Brnovich907 F.3d 1167 (9th Cir. 2018) Ballot Harvesting • Knox, a precinct committee person, filed an action against Arizona's attorney general, challenging HB2023 (2016) and alleging that only federal law dictates the handling of mail; the ballot collector’s speech is burdened; and it is unclear who is an election official engaged in official duties. Following a bench trial, the District Court entered judgment in favor of attorney general; Knox appealed. • The 9th Circuit Court of Appeals held that H.B. 2023 is not preempted by federal laws regulating the U.S. Postal Service; does not violate the First Amendment’s protection of speech of ballot collectors since the collector does not speak by handling another person’s speech (early ballot); and it is not an unconstitutionally vague criminal statute because a reasonable person would not believe a precinct committee person is an election official engaged in official duties. • The Court affirmed the District Court’s decision.

39. Arizona Libertarian Party v. Hobbs925 F. 3d 1085 (9th Cir. 2019) Signature Calculation • The Libertarian Party challenged a 2015 law that recalculates the formula for determining candidate signature requirements, which has the effect of increasing the number of signatures necessary for a Libertarian candidate to run for office (e.g. In 2014, a Libertarian could run for statewide office with a minimum of 133 signatures, one-half percent of all those registered with the party). Under the new formula, which takes into account all the independent voters, a Libertarian must obtain a minimum of 3,034 signatures. • The Libertarian Party argued that the new signature requirement is “unconstitutionally severe” as applied to the party; violates the Libertarians’ freedom of association by compelling them to rely on independent voters (non-members) to nominate their own partisan candidates; and thwarts the party’s ability to establish and develop it’s core functions to choose their own candidates to be placed on the ballot. • Judge David Campbell granted summary judgment to the Secretary. On appeal, the Court of Appeals affirmed and held that the state's signature requirements are reasonable restrictions that impose, at most, a modest burden on the Libertarian Party's First and Fourteenth Amendment rights, while directly advancing Arizona's important regulatory interests. 

40. Rucho v. Common Cause, et al.139 S. Ct. 2484 (2019) Gerrymandering • This case was a consolidation of two partisan gerrymandering cases from North Carolina (Rucho) and Maryland (Lamone v. Benisek), with claims brought by Democrats and Republicans, respectively. The plaintiffs alleged that the gerrymandering violated the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Elections Clause, and Article I, § 2, of the Constitution. It was clear by the record that both political parties openly admitted to partisan gerrymandering in these states and an intent to exclude the other parties in their respective cases. The District Courts in both cases found violations of the Constitution and ruled in favor of the plaintiffs. • On June 27, 2019, in a 5-4 decision, the Court held “that partisan gerrymandering claims present political questions beyond the reach of the federal courts” and federal courts cannot redistribute political power without constitutional authority. • Justice Roberts emphasized that the Court does not condone partisan gerrymandering but there are more effective ways to address the issue such as Congress’ Constitutional authority to regulate elections, amendments to state constitutions, and the creation of independent redistricting commissions. • The case was vacated and remanded.

41. General Updates

42. Questions?