Arizona Supreme Court, in Division, Holds Violation of ARCAP 8.1(c) is Not Jurisdictional and Reaffirms “Substantial Compliance” Standard for Nomination Petitions’ Conformity with Statutory Requirements.

Keith Bee is seeking the Republican nomination for justice of the peace in Pima county precinct 5.  When the superior court invalidated his nomination petitions and struck his name from the ballot, he appealed to the Supreme Court, which reversed in an earlier order.  Justice Bales, sitting in a division with Vice Chief Justice Berch and Justice Ryan, issued this opinion explaining the Court’s earlier order.

Arizona Rule of Appellate Procedure 8.1, which the Supreme Court recently adopted, governs appeals in expedited election matters.  Subsection 8.1(c) requires appellants in expedited election matters to file a copy of the notice of appeal and other materials in the appellate court “[n]ot later than the next business day after filing the notice of appeal in the superior court.” ARCAP 8.1(c).   In contrast to the requirement that an appeal be timely filed, the failure to timely file a copy of the notice of appeal in accordance with Rule 8.1 is not a jurisdictional defect to an expedited election appeal.  Accordingly, the Supreme Court explained, because Bee’s notice of appeal was timely filed with the Superior Court, Bee’s failure to file a copy of his notice of appeal with the Supreme Court until 3 days after the deadline imposed by ARCAP 8.1(c) did not require the dismissal of his appeal.

On the merits, Bee’s challenger, Kent, argued that the Superior Court properly struck Bee’s name from the ballot because his nominating petitions failed to state that the term for which he is running was an unexpired vacant term, as required by A.R.S. § 16-314(D).  Rejecting this argument and reversing the superior court, the Court reiterated that nominations are evaluated for “substantial compliance” with statutory provisions.  The Court explained that because there was only one seat for the office being contested, and because Bee’s petitions listed the office sought they posed no risk of confusion to voters and substantially complied with the statutory requirements.

Vice Chief Justice Berch and Justice Ryan concurred.