Arizona Supreme Court Holds that the Ten-Day Limitation for Judicial Review Contained in A.R.S. § 19-122(A) Applies to Challenges to the Secretary of State’s Actions Under A.R.S. § 19-121.01, Including the Disqualification of Signature Sheets and Signatures Submitted in Support of an Initiative.

On July 2, 2008, Transportation Infrastructure Moving Arizona’s Economy (“TIME”) submitted initiative signature sheets with the Secretary of State (“the Secretary”), who, on July 24, issued a receipt stating that TIME had filed 19,945 signature sheets containing 238,874 signatures.  The Secretary stated that she had removed various sheets and signatures and explained the reasons for so doing.  The Secretary then created a five-percent sample of the 238,874 signatures and transmitted them to the county recorders for verification.  After review, the county records disqualified 5,021 signatures (42.02% of the sample).  august 11, 2008 the Secretary notified TIME that after applying the 42% error rate to the 238,874 eligible signatures, the number of valid signatures was 138,452, below the constitutionally-required minimum number of signatures to place an initiative on the ballot.

On August 13, 2008, TIME filed a complaint against the Secretary and the Maricopa County Recorder, alleging that the Secretary improperly removed 9,168 signatures before creating her sample.  In response, the Secretary moved to dismiss TIME’s claims, arguing that A.R.S. § 19-122(A) required TIME to challenge her removal of petition sheets and signatures within ten days of July 24, 2008.  The trial court granted the Secretary’s motion and this appeal followed.

The Arizona Supreme Court first explained that A.R.S. § 19-122(A) provides, in relevant part, that “[w]ithin ten calendar days after the [Secretary’s] refusal [to transmit the facsimiles of a signature sheet or sheets to the county recorders for certification] any citizen may apply to the superior court for a writ of mandamus to compel the secretary of state to . . . transmit the facsimiles . .  . .”  The Court rebuffed TIME’s argument that § 19-122(A) does not apply because its claims challenged the Secretary’s ultimate certification, rather than the Secretary’s failure to transmit certain signature sheets.  The Court reasoned that TIME did not contend that the Secretary made any mathematical blunders in her calculation and, regardless, TIME cannot circumvent § 19-122(A)’s limitations by characterizing its claims as a challenge to the Secretary’s calculations.

The Court also concluded that § 19-122(A) should not be read to apply only “to refusals to accept and file an entire initiative petition or to transmit to the county recorders facsimiles created by the Secretary under § 19-121.01(C).”  The Court feared that such an interpretation would result in a lack of “judicial review of either the Secretary’s decision to disqualify sheets or and signatures under § 19-121.01 or the Secretary’s consequent failure to create a sufficiently large random sample for recorder review.”  This fear also stemmed in part from the fact that the general mandamus statute would not apply because TIME’s challenge (and others like it) does not involve a failure on the Secretary’s part to perform her statutory duties.  Thus, § 19-122(A) governed TIME’s claims, which the Court held were properly dismissed because they were brought more than ten days after July 24, 2008.

At the end of its decision, the Court suggested that Title 19 deserves a thorough legislative reexamination because it imposes onerous burdens on parties to litigation and election officials alike. 

Justice Hurwitz authored the opinion; Chief Justice McGregor, Vice Chief Justice Berch, and Justices Ryan and Bales concurred.