Transportation Infrastructure v. Brewer

 

SUPREME COURT OF ARIZONA
En Banc

TRANSPORTATION INFRASTRUCTURE ) Arizona Supreme Court
MOVING ARIZONA'S ECONOMY, a ) No. CV-08-0275-AP/EL
political committee registered )
with the Arizona Secretary of ) Maricopa County
State; THOMAS ZIEMBA, an ) Superior Court
individual, ) No. CV2008-019561
)
Plaintiffs/Appellants, )
)
v. ) O P I N I O N
)
JANICE K. BREWER, in her )
official capacity as Secretary )
of State; and HELEN PURCELL, in )
her official capacity as )
Maricopa County Recorder, )
)
Defendants/Appellees. )
)
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Mark F. Aceto, Judge

AFFIRMED
________________________________________________________________

PERKINS COIE BROWN & BAIN P.A. Phoenix
By Paul F. Eckstein
Charles A. Blanchard
Rhonda L. Barnes
M. Bridget Minder
Craig A. Morgan
James E. Barton, II
Attorneys for Transportation Infrastructure Moving Arizona's
Economy and Thomas Ziemba

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Mary R. O’Grady, Solicitor General
Barbara A. Bailey, Assistant Attorney General
Tanja K. Shipman, Assistant Attorney General
Attorneys for Janice K. Brewer, Arizona Secretary of State
COPPERSMITH GORDON SCHERMER & BROCKELMAN PLC Phoenix
By Andrew S. Gordon
Attorneys for Amici Curiae Professional Firefighters
of Arizona, Kimberly A. Demarchi, Andrew S. Gordon,
Thomas K. Irvine, and J. Grant Woods
________________________________________________________________

H U R W I T Z, Justice

¶1 The issue before us is whether the superior court

erred in dismissing claims by appellants Transportation

Infrastructure Moving Arizona’s Economy and Thomas Ziemba

(hereafter collectively referred to as “TIME”) that the

Secretary of State violated A.R.S. § 19-121.01 (2002) in her

review of an initiative petition concerning the Arizona

transportation system.

I.

A.

¶2 Our constitution reserves to the people the

legislative power of initiative. Ariz. Const. art. 4, pt. 1,

§ 1(2). That right is exercised by filing an initiative

petition with the Secretary of State not less than four months

before the date of a general election. Id. § 1(4). A

legislative measure properly proposed by initiative is referred

to the people at the next general election. Id. § 1(5).

¶3 To qualify for the ballot, an initiative petition

proposing legislation must be signed by ten percent of all

qualified electors. Id. § 1(2). The number of qualified

2
electors is “[t]he whole number of votes cast for all candidates

for Governor at the general election last preceding the filing

of” the initiative petition. Id. § 1(7).

¶4 The legislature has enacted a detailed scheme for

determining whether the sponsors of an initiative have submitted

sufficient signatures. See A.R.S. §§ 19-121 to -122 (2002 &

Supp. 2007). That process begins when “petition sheets”

containing signatures are submitted to the Secretary of State.

The initiative petition is then deemed filed and the Secretary

issues a receipt “based on an estimate . . . of the purported

number of sheets and signatures filed.” A.R.S. § 19-121(B).

¶5 The Secretary has twenty days from the date of filing,

excluding weekends and holidays, to “remove” certain signature

sheets and individual signatures under A.R.S. § 19-121.01(A).1

The Secretary is required to disqualify entire signature sheets

for specified reasons. A.R.S. § 19-121.01(A)(1). The Secretary

next reviews the remaining sheets and removes signatures by

electors not from the county with the most signers on a sheet.

                                                            
1
Until this year, the period for removal was fifteen days.
See A.R.S. § 19-121.01(A) (2002). On May 27, 2008, emergency
legislation was enacted extending the time period to twenty
days. 2008 Ariz. Sess. Laws, ch. 244, §§ 3, 7 (2d Reg. Sess.).
Because this legislation was not precleared by the United States
Department of Justice under section 5 of the Voting Rights Act
of 1965, 42 U.S.C. § 1973c (2000), until July 31, 2008, the
Secretary completed removal of signatures from TIME’s signature
sheets within the previously applicable fifteen-day period.
3
A.R.S. § 19-121.01(A)(2). The Secretary also must remove

individual signatures that are missing required information,

exceed the permitted number of fifteen signatures per sheet, or

have been withdrawn. A.R.S. § 19-121.01(A)(3). The Secretary

then counts the total sheets and signatures that have not been

removed and issues a receipt to the initiative sponsor

specifying the total number of sheets and signatures “eligible

for verification.” A.R.S. § 19-121.01(A)(4)-(6).

¶6 If the number of signatures eligible for verification

“equals or exceeds the constitutional minimum,” the Secretary

then selects at random five percent of the remaining signatures.

A.R.S. § 19-121.01(B). The sample must “be drawn in such a

manner that every signature eligible for verification has an

equal chance of being included.” Id. The Secretary must

“reproduce a facsimile of the front of each signature sheet”

containing a signature selected for the sample and transmit

these facsimiles to the county recorders. A.R.S. § 19-

121.01(C).

¶7 A second phase of the verification process then

begins. The county recorders have fifteen days to determine

whether signatures in the random sample should be disqualified

4
for various reasons. A.R.S. § 19-121.02(A) (Supp. 2007).2 The

recorders must then certify their determinations to the

Secretary. A.R.S. § 19-121.02(B). The recorders also “[s]end

notice of the results” to the initiative sponsor. A.R.S. § 19-

121.02(D)(2).

¶8 After receiving the certifications from the county

recorders, the Secretary has seventy-two hours, excluding

weekends and holidays, to certify the total number of valid

signatures. A.R.S. § 19-121.04(A).3 The starting point is the

number of eligible signatures determined under § 19-121.01(A)(6)

— the number from which the Secretary selected the five-percent

random sample. A.R.S. § 19-121.04(A). The Secretary then

subtracts signatures disqualified by the county recorders.

A.R.S. § 12-121.04(A)(2).4 From the remaining eligible

                                                            
2
On May 27, 2008, the statutory period was extended from ten
to fifteen days. 2008 Ariz. Sess. Laws, ch. 244, § 4 (2d Reg.
Sess.). See supra note 1.
3
The statutory period was extended from forty-eight to
seventy-two hours on May 27, 2008. 2008 Ariz. Sess. Laws, ch.
244, § 5 (2d Reg. Sess.). See supra note 1.
4
Section 19-121.04(A)(1) allows the Secretary also to
subtract from the total computed under § 19-121.01(A)(6)
signatures on petitions containing a defective circulator’s
affidavit. The Secretary, however, is required under § 19-
121.01(A)(1)(d)-(f) to remove petitions with defective
affidavits before computing the § 19-121.01(A)(6) base number.
Moreover, the review by the county recorders does not involve
circulators’ affidavits, as the recorders receive only
facsimiles of the fronts of the signature sheets under § 19-
5
signatures, the Secretary subtracts a “like percentage” of the

signatures disqualified in the random sample. A.R.S. § 19-

121.04(A)(3).

¶9 If the remaining number of signatures is greater than

one hundred five percent of the constitutional minimum, the

Secretary notifies the applicant and Governor that the

initiative should be placed on the ballot. A.R.S. § 19-

121.04(B). If the remaining number is less than ninety-five

percent of the minimum, the Secretary returns the original

signature sheets and notifies the applicant that there are

insufficient signatures. A.R.S. § 19-121.04(D). If the number

falls between ninety-five and one hundred five percent, the

Secretary orders the county recorders to examine and verify each

signature filed to determine whether the number required by the

constitution has been submitted. A.R.S. § 19-121.04(C).

_____________________ 
121.01(C), and the circulators’ affidavits are on the backs of
the sheets.

It appears that § 19-121.04(A)(1) is a remnant of a
previous legislative scheme. Until 1999, the Secretary of State
was also required to reproduce a facsimile of the circulator’s
affidavit for every petition sheet not removed by the Secretary,
A.R.S. § 19-121.01(C) (Supp. 1998); county recorders then
determined whether affidavits would be disqualified, A.R.S.
§ 19-121.02(A)(10), (B) (Supp. 1998). The legislature amended
the statute in 1999 to relieve the county recorders of the duty
of verifying circulators’ affidavits and accordingly also
removed the requirement that facsimiles of affidavits be
transmitted. 1999 Ariz. Sess. Laws, ch. 353, §§ 5-6 (1st Reg.
Sess.).
6
B.

¶10 On July 2, 2008, TIME filed signature sheets with the

Secretary of State, who issued an “Initial Receipt” reflecting

TIME’s estimate of the number of sheets and signatures

submitted. On July 24, 2008, the Secretary issued a second

receipt stating that she had “completed her duties” under § 19-

121.01(A) and accordingly had “filed a total of 19,945 petition

signature sheets containing 238,874 signatures.” The Secretary

listed the reasons for the removal of various sheets and

signatures submitted by TIME. See A.R.S. § 19-122(A) (requiring

the Secretary to provide the initiative sponsor “with a written

statement” for actions undertaken in the § 19-121.01 review

process). The Secretary then created a five-percent sample of

the remaining 238,874 signatures — 11,944 signatures — and sent

facsimiles of the sheets containing these signatures to the

county recorders for verification. The county recorders then

disqualified 5,021 signatures, or 42.04 percent of the sample.

The bulk of the disqualifications came from Maricopa County;

that county’s recorder received 10,445 of the signatures in the

sample and disqualified 4,712.

¶11 On August 11, 2008, the Secretary notified TIME that

after applying the recorders’ error rate to the 238,874

signatures that she had previously determined were eligible for

verification, the number of valid signatures projected from the
7
random sample was 138,451. The constitutional minimum for an

initiative proposing legislation was 153,365 signatures.

Ninety-five percent of this number is 145,697. Because TIME had

submitted only 90.28 percent of the constitutional minimum, the

Secretary concluded that the petition should not be placed on

the ballot. See A.R.S. § 19-121.04(D).

C.

¶12 On August 13, 2008, TIME filed a complaint in Maricopa

County Superior Court against the Secretary of State and the

Maricopa County Recorder. The complaint alleged that (1) the

Secretary had improperly removed 9,168 signatures before

creating the sample and (2) the Maricopa County Recorder had

improperly disqualified 429 signatures in the random sample.

TIME asked that these signatures be added to the base number of

qualified signatures. TIME also requested that the overall

error rate be adjusted in light of the signatures allegedly

improperly disqualified by the Maricopa County Recorder.

¶13 TIME contended that if its requested adjustments were

made, the valid number of signatures submitted would be at least

ninety-five percent of the constitutional minimum. Because the

Maricopa County Recorder had previously indicated that she could

not verify all the signatures submitted for another initiative

8
before early voting began,5 TIME asked that its initiative be

placed on the ballot without a verification of each signature

filed. See Save Our Pub. Lands Coalition v. Stover, 135 Ariz.

461, 464, 662 P.2d 136, 139 (1983) (holding that if county

recorders are unable to verify before the ballot printing

deadline each signature of a petition for which the random

sample produces a certification rate between ninety-five and one

hundred five percent, the initiative should be placed on the

ballot).

D.

¶14 On August 19, 2008, the Secretary of State moved to

dismiss the claims against her. She argued that under A.R.S.

§ 19-122(A), TIME was required to challenge her removal of

petition sheets and signatures within ten days of her July 24,

2008 letter. The superior court granted the motion to dismiss

and on August 21, 2008, entered a judgment pursuant to Arizona

Rule of Civil Procedure 54(b) in favor of the Secretary; the

claims against the Maricopa County Recorder remained.

                                                            
5
Pursuant to A.R.S. § 19-121.04(C), the Secretary had
ordered county recorders to verify each signature submitted in
support of the “Protect Our Homes” initiative, for which the
random sample had projected a valid signature rate between
ninety-five and one hundred five percent. On August 4, 2008,
the Maricopa County Recorder notified the Secretary of State
that she could not complete this verification before early
voting was scheduled to begin.
9
¶15 On the following day, August 22, TIME filed a notice

of appeal pursuant to ARCAP 8.1(c). This Court held a

scheduling conference on the same day pursuant to ARCAP 8.1(f)

and was informed by elections officials that to comply with

statutory deadlines governing early balloting, the general

election ballot needed to be submitted to the printer by the

close of business on August 26 and finalized by August 28. See

2008 Ariz. Sess. Laws, ch. 273, § 16 (2d Reg. Sess.) (amending

A.R.S. § 16-545(B)) (requiring delivery of early ballots to the

recorder no later than the thirty-third day before the

election); id. § 14 (amending A.R.S. § 16-542(C)) (requiring

mailing of early ballots within five days after receipt by

recorder).6 With the concurrence of the parties, the Court

ordered that simultaneous briefs be filed on August 25, 2008, in

order that a decision could be reached on the following day. No

party requested oral argument.

¶16 We issued an order affirming the judgment of the

superior court on August 26, 2008, noting that an opinion would

follow. This is that opinion.

                                                            
6
These statutory amendments were precleared by the
Department of Justice on September 2, 2008. The previous
versions of the two statutes were functionally the same. See
A.R.S. § 16-545(B) (2006) (requiring ballots to be delivered to
recorders by the thirtieth day preceding the Saturday before the
election); A.R.S. § 16-542(C) (requiring the recorders to mail
the ballots within five days of receipt).
10
II.

¶17 Chapter 1 of Title 19, which governs initiative and

referendum petitions, contains several provisions allowing for

judicial review of decisions by election officials and setting

deadlines for bringing suit. County recorders’ actions are

reviewed under A.R.S. § 19-121.03. Subsection (A) governs

claims that a recorder has failed or refused to comply with

§ 19-121.02; suit must be brought within ten days after the

failure or refusal. A.R.S. § 19-121.03(A). Subsection (B)

governs challenges to a recorder’s certification of the number

of valid signatures in the random sample. Suit must be brought

within ten days of the receipt of the certification by the

Secretary of State. A.R.S. § 19-121.03(B).

¶18 Section 19-122 governs challenges to actions of the

Secretary of State. Subsection (C) allows a suit to enjoin the

Secretary from certifying an initiative measure to the ballot if

the “petition filed is not legally sufficient.” A.R.S. § 19-

122(C). Subsection (C) contains no time limitation, but we have

held that any suit under this provision “must be initiated and

heard in time to prepare the ballots for absentee voting to

avoid rendering an action moot.” Kromko v. Superior Court, 168

Ariz. 51, 57, 811 P.2d 12, 18 (1991).

¶19 By their terms, neither § 19-121.03 nor § 19-122(C)

applies to TIME’s claims against the Secretary of State. The
11
only other judicial review provision in Chapter 1 is A.R.S.

§ 19-122(A). That statute provides in relevant part as follows:

If the secretary of state refuses to accept and
file a petition for the initiative . . . which has
been presented within the time prescribed, or if he
refuses to transmit the facsimiles of a signature
sheet or sheets or affidavits of circulators to the
county recorders for certification under § 19-121.01,
he shall provide the person who submitted the
petition, proposal, signature sheet or affidavit with
a written statement of the reason for the refusal.
Within ten calendar days after the refusal any citizen
may apply to the superior court for a writ of mandamus
to compel the secretary of state to file the petition
or proposal or transmit the facsimiles . . . .7

¶20 The superior court held that § 19-122(A) governs

TIME’s claims against the Secretary. The Secretary of State

provided TIME with written reasons for her disqualification of

certain signature sheets and signatures on July 24, 2008; TIME

did not commence this suit until August 13. Therefore, if § 19-

122(A) governs TIME’s claims against the Secretary, the superior

court correctly dismissed those claims as untimely.

A.

¶21 TIME first argues that its complaint is not governed

by § 19-122(A) because it attacks the Secretary’s ultimate

certification pursuant to § 19-121.04(D) that the initiative

lacked sufficient signatures to be placed on the ballot. That

                                                            
7
The references in § 19-122(A) to affidavits of circulators
are apparently a historical anomaly, as the Secretary now has no
duty under § 19-121.01 to transmit facsimiles of these
affidavits to the county recorders. See supra note 4.
12
certification was not made until after the county recorders

completed their work under § 19-121.02 and thus could not have

been challenged within the ten-day period specified in § 19-

122(A), which began to run on July 24, 2008, the day the

Secretary notified TIME of her reasons for rejecting various

signature sheets and signatures.

¶22 We need not tarry over this argument. The Secretary’s

ultimate certification under § 19-121.04 as to the results of

the screening process is a purely mathematical calculation – the

Secretary starts with the base number of signatures submitted

(as previously determined by the Secretary under § 19-

121.01(A)(6)) and then subtracts signatures disqualified by the

county recorders and a “like percentage” of the signatures

disqualified in the sample. The Secretary then compares the

resulting number to the constitutional minimum to qualify for

the ballot. TIME did not allege that the Secretary made any

mathematical errors in the § 19-121.04 calculations, but rather

that the numbers used in that calculation resulted from prior

errors in the review processes conducted by the Secretary under

§ 19-121.01 and the Maricopa County Recorder under § 19-121.02.

¶23 Moreover, TIME’s argument proves too much. Challenges

to a recorder’s certification are governed by § 19-121.03(B). A

challenger cannot avoid the time limitation in § 19-121.03(B) by

claiming that the Secretary’s ultimate calculations under § 19-
13
121.04 were based on an improper certification by a county

recorder. See Open Primary Elections Now v. Bayless, 193 Ariz.

43, 46 ¶ 10, 969 P.2d 649, 652 (1998). Similarly, if § 19-

122(A) governs TIME’s challenges to the Secretary’s

determinations under § 19-121.01, the time limitations of that

statute cannot be circumvented by describing a suit as a

challenge to the ultimate § 19-121.04 calculations. Thus, we

must move to the central question in this case: Does § 19-

122(A) apply to TIME’s suit against the Secretary?

B.

¶24 TIME suggests that this Court adopt a “narrow reading”

of § 19-122(A) and hold that the statute does not apply to all

decisions made by the Secretary under § 19-121.01, but rather

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 Secretary

argues that because TIME is challenging her removal of signature

sheets and signatures, it is necessarily contending that she

should have accepted these sheets and signatures for filing and

sent additional signatures and facsimiles to the county

recorders for verification. The Secretary contends that § 19-

122(A) therefore applies.

¶25 TIME grounds its argument in a parsing of § 19-122(A),

which refers to the failure of the Secretary “to transmit the
14
facsimiles of a signature sheet or sheets . . . to the county

recorders for certification,” not to the failure of the

Secretary to create facsimiles in the first place. TIME’s

reading of the statute is not without some technical linguistic

appeal. But, as TIME concedes, its interpretation of § 19-

122(A) creates a wide gap in the judicial review provisions of

Title 19, Chapter 1. No statute in that chapter other than

§ 19-122(A) purports to allow judicial review of the decisions

of the Secretary today challenged by TIME. Under TIME’s

reading, the initiative statutes would contain no provision for

judicial review of either the Secretary’s decision to disqualify

sheets and signatures under § 19-121.01 or the Secretary’s

consequent failure to create a sufficiently large random sample

for recorder review.

¶26 We confronted a similar issue in Pointe Resorts, Inc.

v. Culbertson, 158 Ariz. 137, 761 P.2d 1041 (1988). In that

case, a city clerk determined that the proponents of a

referendum challenging a municipal ordinance had submitted an

insufficient number of valid signatures. Id. at 139, 761 P.2d

at 1043. The plaintiff challenged that certification; the issue

was whether that challenge was governed by the ten-day

limitation in § 19-121.03(B).

¶27 The challenger in Pointe Resorts relied on the

language of § 19-121.03(B), which on its face applied only to
15
“the certification made by the county recorder.” Id. at 143,

761 P.2d at 1047. We rejected that claim in part because the

“statute and its provisions must of necessity apply here or

there is no machinery by which the courts could review the

clerk’s actions at all.” Id. at 143-44, 761 P.2d at 1047-48.

We refused to countenance such a “nonsensical” result. Id. at

143, 761 P.2d at 1047.

¶28 In Kromko v. Superior Court, we addressed an analogous

argument. Relying on legislative history, the proponent of an

initiative argued that § 19-122(C) requires that challenges to

the Secretary’s decision to place a measure on the ballot be

filed within the same ten-day period as challenges under § 19-

122(A). Kromko, 168 Ariz. at 55, 811 P.2d at 16. We noted,

however, that such a reading would deprive challengers of any

statutory avenue for review of the Secretary’s decision to place

on the ballot a petition initially accepted subject to

verification under §§ 19-121.01 and 19-121.02. Id. at 56, 811

P.2d at 17. We refused to interpret the statutes in a manner

that would deprive citizens of “the means and opportunity” to

challenge the Secretary’s actions. Id.

¶29 Similar concerns guide us here. Given the importance

of the initiative process, it is extremely unlikely that the

legislature would provide in § 19-122(A) a prompt remedy for the

Secretary’s failure to transmit a single facsimile sheet as
16
required by § 19-121.01, but provide no remedy at all for the

improper disqualification under the same statute of hundreds of

signature sheets. Nor do we believe that the legislature

intended that § 19-122(A) require a prompt challenge to the

Secretary’s decision to reject an entire petition because of

defects in a sufficient number of circulators’ affidavits, but

not govern judicial review of the Secretary’s decision to

disqualify a lesser number of sheets (but not enough to require

rejection of the petition) on identical grounds. Cf. Harris v.

City of Bisbee, 219 Ariz. 36, 39 ¶¶ 9-12, 192 P.3d 162, 165

(App. 2008) (holding that § 19-122(A) governs action attacking

town clerk’s invalidation of signature sheets and consequent

refusal to forward petitions to county recorder for verification

under § 19-121.01(B)-(C)).

¶30 We decline to conclude that Title 19 contains “no

machinery . . . by which the courts could review the [election

official’s] actions.” Kromko, 168 Ariz. at 55, 811 P.2d at 16.

Rather, the most reasonable interpretation of § 19-122(A) is

that it applies to challenges to the Secretary’s actions under

§ 19-121.01, including the disqualification of signature sheets

and signatures, and that the ten-day limitation period begins to

run when the Secretary issues her written statement explaining

her reasons for rejecting signature sheets and signatures.

17
C.

¶31 TIME argues that if § 19-122(A) is interpreted as

inapplicable to challenges such as the one before us, judicial

review of the Secretary’s § 19-121.01 disqualification of

signature sheets and signatures remains available under the

general mandamus statute, A.R.S. § 12-2021 (2003). That

provision authorizes actions “to compel . . . performance of an

act which the law specially imposes as a duty resulting from an

office.”

¶32 As an initial matter, we note that TIME’s claims

against the Secretary do not clearly fall within that statute.

We have described mandamus as available only “to require public

officers to perform their official duties when they refuse to

act.” Sears v. Hull, 192 Ariz. 65, 68 ¶ 11, 961 P.2d 1013, 1016

(1998) (quoting Smoker v. Bolin, 85 Ariz. 171, 173, 333 P.2d

977, 978 (1958)). In this case, TIME’s claim is not that the

Secretary refused to perform her statutory duties under § 19-

121.01(A) but rather that she erred in performing them.

¶33 But even if this problem is overlooked, a serious one

remains. Although our statutes do not expressly limit the time

within which mandamus and other extraordinary forms of relief

may be sought, we have long emphasized that a party may not

unreasonably delay in bringing such actions. See, e.g., Felix

v. Superior Court, 92 Ariz. 247, 250, 375 P.2d 730, 732 (1962).
18
Consequently, we have denied special action relief in election

cases when delay in filing an action is unreasonable. Sotomayor

v. Burns, 199 Ariz. 81, 83 ¶ 8, 13 P.3d 1198, 1200 (2000).

¶34 In the case before us, TIME was aware of the

Secretary’s reasoning for the § 19-121.01(A) disqualifications

by July 24, yet did not file suit until August 13, after the

county recorders had completed their § 19-121.02 certifications.

Under the statutory scheme, if the Secretary indeed erred in

some or all of her § 19-121.01(A) disqualifications, TIME would

only be entitled to two remedies: (1) correction of the

Secretary’s initial determination under § 19-121.01(A)(6) of the

number of signatures “eligible for verification” and (2) a

consequent increase in the number of signatures (and facsimiles)

included in the sample and forwarded to the county recorders for

verification. By delaying its action until after the recorder

verification process was completed, TIME at the very least made

difficult – and perhaps impossible – any remedy involving

further preparation of additional facsimiles by the Secretary

and review of randomly chosen signatures by the county

recorders. And, even assuming that such a process could have

been completed before the deadline for printing ballots, it

seems clear that effective judicial review of the recorders’

verifications – either at the trial or appellate level – simply

could not have occurred. See Harris v. Purcell, 193 Ariz. 409,
19
412-13 ¶ 17, 973 P.2d 1166, 1169-70 (1998) (noting that “[t]o

wait until the last moment [to challenge an election matter]

places the court in a position of having to steamroll through

the delicate legal issues in order to meet the deadline for

measures to be placed on the ballot”) (alterations in original).

¶35 Thus, if we were to accept TIME’s argument that

mandamus is the appropriate method for addressing its claims

against the Secretary, we would be required in virtually every

case to determine whether such claims were unreasonably delayed.

In contrast, § 19-122(A) expressly contemplates that suit be

brought at a time when, if the challenge is successful, the

superior court can order the Secretary to forward additional

facsimiles to the recorders for verification. There is no

significant harm to initiative sponsors in requiring that all

challenges to the Secretary’s § 19-121.01 determinations be

brought within ten days after notice of the reasons for such

actions is issued.8 The most reasonable reading of the statutory

                                                            
8
TIME argues that challengers will face additional expense
if forced first to challenge the Secretary’s decisions under
§ 19-122(A) and then later to challenge the recorders’
certifications under § 19-121.03(B). It is not apparent to us
that significant extra expense will thereby be incurred, as
challengers in TIME’s position will be required in the end to
prove their claims against both the Secretary and the recorders.
Moreover, even under TIME’s “narrow” interpretation of § 19-
122(A), two separate suits would be required if the Secretary
improperly failed to transmit a specific facsimile sheet or
rejected an entire petition.
20
scheme is that claims that the Secretary erred in the execution

of her § 19-121.01 duties are governed by § 19-122(A), not the

general mandamus statute.

III.

¶36 For the reasons stated above, we hold that the

superior court correctly dismissed TIME’s claims against the

Secretary as time-barred under § 19-122(A).9

¶37 It is appropriate to add an additional word. We

respectfully suggest that Title 19 deserves a thorough

legislative reexamination. Even when, as here, election

officials act promptly and both sides are represented by

extraordinarily able counsel, the entire statutory scheme no

longer can always be followed. Even in a case not involving

litigation, the Maricopa County Recorder has candidly

                                                            
9
   Although TIME remained free under the superior court’s Rule
54(b) judgment to pursue its separate claims against the
Maricopa County Recorder, it did not do so before the deadline
for printing early ballots.
Without success in at least some of TIME’s claims against
the Recorder, even complete success against the Secretary would
not have resulted in placement of the initiative on the ballot.
TIME’s complaint alleged that the Secretary had improperly
disqualified 9,168 signatures. Assuming that TIME would have
succeeded in establishing that each signature was improperly
disqualified, the resulting number of signatures eligible for
verification under § 19-121.01(A)(6) would have increased to
248,042. But if the statewide error rate from the random sample
remained at 42.04 percent, this increased base number would
result in only 143,765 valid signatures, 93.74 percent of the
constitutional minimum.
21
acknowledged that she is unable to complete the signature-by-

signature verification process required by A.R.S. § 19-121.04(C)

in a timely fashion. See supra note 5 and accompanying text.

This is not a new problem; we confronted it more than a quarter

of a century ago in Save Our Public Lands Coalition, and

concluded that when an initiative is denied its statutory

entitlement to such review, the appropriate relief is to order

placement of the measure on the ballot. 135 Ariz. at 464, 662

P.2d at 139.

¶38 But whatever the practical necessity of that decision,

it would clearly be preferable for the legislature to modify the

statutory scheme in light of today’s realities to avoid such

structural problems. Our election officials are required to

process large numbers of initiative and referendum petitions.

The growth of the state’s electorate means that the number of

signatures submitted in order to qualify for placement on the

ballot has also steadily grown. And, even when the Secretary

and county recorders complete the verification process within

the statutory deadlines, the time for judicial review has been

shortened by the need to prepare ballots for early voting.

¶39 It is, of course, not within our constitutional

assignment to suggest specific legislative solutions to this

problem. And, if no change is made in the qualification

process, the judiciary will continue to decide election cases
22
with all appropriate celerity. But it is not, we think, beyond

our role to suggest that there may be a better way, and to

encourage the other branches of government to consider that

issue.

_______________________________________
Andrew D. Hurwitz, Justice

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
W. Scott Bales, Justice

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