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Kennedy v. Lodge - 11/15/2012

Arizona Supreme Court Holds That A Candidate Who Is Ineligible To Run For Office Because of Defective Nominating Petitions Is Also Ineligible To Run As A Write-In Candidate Because The Petitions Fail To Provide A Sufficient Number of Valid Petition Signatures Under A.R.S. § 16-312(F)(3).


Before the 2012 general election, Joseph Lodge was an incumbent judge of the Superior Court in Coconino County.  He sought reelection to a new term.  Lodge omitted the superior court division number from his nominating petitions for the primary election.  In an earlier opinion, the Arizona Supreme Court held that the petitions were fatally defective and that Lodge could not run for the 2012 Democratic primary.  Kennedy v. Lodge (Lodge I), 230 Ariz. 134, 281 P.3d 488 (2012).  After Lodge I, Lodge then sought to run as a write-in candidate in the Libertarian primary. 

Kennedy, a qualified elector, challenged the candidacy.  She argued that A.R.S. § 16-312(F)(3) barred Lodge’s write-in candidacy.  The superior court ruled in favor of Lodge and Kennedy appealed on an expedited basis to a three-justice panel of the Supreme Court.

The Supreme Court panel reversed and barred Lodge from running as a write-in candidate.  A.R.S. § 16-312(F) bars write-in candidates in certain circumstances.  Section 16-312(F)(3) bars a candidate who has “filed a nomination petition for the current primary election for the office sought and failed to provide a sufficient number of valid petition signatures as prescribed by § 16-322.”  Lodge’s nominating petitions were invalid in their entirety due to the failure to list the superior court division number for which he was running.  The question in this case was whether the statute applies to petitions that “were invalid in their entirety for failure to substantially comply with the statutory requirements.”

Lodge argued that the there is a meaningful difference between a defective petition and a petition that has an inadequate number of valid signatures.  The Supreme Court disagreed, noting that the Court has previously held “that signatures on defective petitions are themselves invalid.”  Moreno v. Jones, 213 Ariz. 94, 139 P.3d 612 (2006); Brousseau v. Fitzgerald, 138 Ariz. 453, 675 P.2d 713, 716 (1984).  The fact that those cases involved different defects did not change the analysis in this case.  The Court explained that “counting signatures on defective petitions” would be “inconsistent with the goal” of ensuring “the integrity of nominations by guarding against misrepresentations and reducing erroneous signatures.”  That was especially true in this case where the error – omitting the name of the office for which he was running – could mislead petition signers.  Accordingly, the Court held that invalid nominating petitions do not “provide a sufficient number of valid petition signatures” under A.R.S. § 16-312(F)(3).  Lodge was therefore ineligible to run as a Libertarian Party write-in candidate in the 2012 election.

Chief Justice Berch authored the unanimous opinion; Justices Pelander and Brutinel concurred.

Posted by: Joseph Roth

Posted On: 11/26/2012