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A quirk in an Arizona statute governing all-mail elections for local taxing districts could prompt a judge to throw out the results of one such election in a case that could have legal repercussions around the state.
The case calls into question the results of Cochise County’s May 2023 election, in which voters narrowly approved a new tax for a county jail. But without a legislative fix to the way the statute is written, other similar elections could be vulnerable to challenges in the future.
The dispute involves a claim by four residents who sued the county to have the election nullified, arguing that ballots for the jail-tax election should have been sent to the roughly 11,000 inactive voters in the county, among other complaints.
A voter’s status is changed to inactive only if their election mail is returned as undeliverable, or if the recorder gets notice they have moved but can’t reach them. For other types of elections, state law prohibits sending ballots to inactive voters, but for taxing districts — which local governments set up to pay for certain projects or services such as stadiums, irrigation, and parks — the law is not as clear. And a pair of court rulings have left some doubt about how that law should be applied.
The Arizona Court of Appeals ruled last June that for those elections, counties must send ballots to inactive voters, and said Cochise County should have done so for the all-mail jail-tax election. The case then went to the Arizona Supreme Court, which last month left in place the appellate court’s decision directing a local judge to determine whether Cochise’s decision to not send ballots to inactive voters changed the outcome of the election. The tax passed by 750 votes out of 25,032 ballots cast.
If the judge rules that the outcome would have changed, he could order that the results be thrown out. But neither party appears to want him to make that call.
The previous Cochise County supervisors, who commissioned the election, had been defending it in court. But after November’s election, when two new Republican members were elected, the board backed out of the case.
In interviews with Votebeat, two of the three supervisors, Frank Antenori and Kathleen Gomez, said they agree with the plaintiffs that the prior supervisors should not have held the taxing district election separately from the November general election, when turnout is higher, and that the county should have provided an opportunity for inactive voters to participate.
Antenori and Gomez also said they want a new jail, but don’t think the county needs a new tax to pay for it, so the county shouldn’t have held the election at all. They are working on a settlement that may try to overturn the results, they said.
That prompted Secretary of State Adrian Fontes, a Democrat, to try to intervene in the case to defend the election results. In a motion filed in February, his office, represented by Attorney General Kris Mayes’ office, said the secretary has an interest in seeing that “elections are not set aside by agreement of aligned parties.”
The judge will soon decide whether to allow Fontes to participate. Meanwhile, the supervisors are scheduling a meeting on Friday to discuss a potential settlement.
Supreme Court move creates legal risk for counties
For special taxing district elections, the law states that county recorders must send a ballot to “each qualified elector entitled to vote in the election.” While the county supervisors initially argued that inactive voters aren’t entitled to vote and shouldn’t be sent a ballot, the appeals court disagreed. The judges wrote that “qualified elector” is defined in state law as a person who is properly registered to vote, which includes voters on the inactive list.
The appeals court ruling and subsequent action by the state Supreme Court put other counties in a tricky position. The Supreme Court depublished the appeals court opinion, meaning the ruling applies only to the Cochise case and doesn’t set statewide precedent.
Because of that, counties could continue leaving out inactive voters in all-mail elections for taxing districts. But if they do, they might open themselves up to future legal challenges like the one in Cochise County.
Tim LaSota, an attorney the new Cochise County supervisors recently hired to represent the county in this case, said counties should still send ballots to inactive voters.
“As long as that’s the law, the peril of ignoring that decision is you could be subject to challenges on the same basis,” as this one, LaSota said in an interview.
If counties don’t like that, he said, they need to ask state lawmakers to change the law.
Even Antenori, who wants the election set aside, said he doesn’t believe inactive voters should get ballots.
Dispute leaves an opportunity to undo jail tax
Because of a conflict of interest involving the presiding judge, the case is now pending before an Apache County Superior Court judge. The judge is considering questions about the impact on the election result.
The next step should be the judge hearing arguments over how the county’s failure to send ballots to inactive voters changed the outcome of the election, which historically has been done by considering mathematical calculations of likely votes from people on that list. But because both the activists and the supervisors want the election results invalidated, Antenori and Gomez said in interviews they plan to propose a settlement agreement to the judge.
Antenori told Votebeat that he wants part of that settlement to include throwing out the jail tax.
Gomez said that she isn’t sure what the settlement should look like, but said the county doesn’t “need a fight to keep that tax.”
Fontes’ motion to intervene states that his office has an interest in “seeing that election contests are not decided by a handshake deal between the challenger and the government entity conducting an election, but by the adversarial process on which our judicial system is built.”
LaSota said he is “stunned” that Fontes is intervening, saying that he and Mayes are “essentially trying to ensure the disenfranchisement of 11,000 Cochise County electors.”
Correction, March 20: A previous version of this story misstated the Supreme Court’s actions in this case. It has also been updated to reflect that the case is pending before an Apache County Superior Court judge.
Jen Fifield is a reporter for Votebeat based in Arizona. Contact Jen at jfifield@votebeat.org.
