Staci Burk v. Doug Ducey

• Court: Arizona Supreme Court
• Decided: January 5, 2021
• Docket: CV-20-0349-AP/EL
• Status: Unknown

Opinion

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 Page 2 of 6

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 Arizona Supreme Court No. CV-20-0349-AP/EL Page 3 of 6

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. Arizona Supreme Court No. CV-20-0349-AP/EL Page 4 of 6 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 Arizona Supreme Court No. CV-20-0349-AP/EL Page 5 of 6 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 Page 6 of 6

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