Maricopa County Recorder Stephen Richer and State Senator Ken Bennett filed amicus briefs in defense of a Ranked Choice Voting (RCV) ballot initiative with the Arizona Supreme Court last week.
Bennett served as the secretary of state from 2009 to 2015. He filed his brief jointly with Helen Purcell, the former Maricopa County recorder who served nearly 30 years.
Richer said in his filing for Smith v. Fontes that the votes should be counted for RCV, or Prop 140, the “Make Elections Fair Act” — regardless of the existence of a disqualifying number of duplicate signatures gathered — because the “election has already begun” and, he says, state law prohibits the prevention of counting votes cast.
“Hiding the results or attempting to prevent the vote from being tabulated is an inequitable result,” said Richer. “And it is at odds with Arizona public policy that demands government transparency. Not counting the vote does not mean it did not happen.”
Richer said all arguments concerning the initiative’s qualifications to be on the ballot were rendered moot after the deadline passed to certify and print the ballots.
“To be resolved with a high degree of certainty may not be currently possible given the election time constraints,” said Richer. “The issue has now, at least partially, gone to the people. The Recorder believes there is benefit to allowing the vote to occur, and assuming it is otherwise constitutional, to count.”
Richer stated that his office had already printed over 21,500 different ballot styles and mailed many of them out to in-state residents as well as military and overseas voters, some of which have been returned: over 1,100 out of about 8,500.
“Recorder submits that once the ballots are printed, the time for signature challenges must end,” said Richer.
Richer also said that state law prohibits the destruction of any public record of a vote, and that Maricopa County’s tabulation machines would tabulate the votes returned.
The recorder noted that state law does allow for courts to enjoin the certification and printing of ballots, but not the power to enjoin the counting of votes.
“[I]f the voting tally is a public record, the Recorder does not see how Maricopa County can either destroy it or fail to release it,” said Richer.
Similarly, Bennett and Purcell argued that their combined expertise on elections made it clear that timeliness in elections takes precedence over validity.
Bennett and Purcell cited court precedent in their argument of mootness regarding the challenge to Prop 140’s validity. Secretary of State Adrian Fontes instructed county election officials to include Prop 140 on their ballots printed in late August.
“Courts have consistently upheld the principle that pre-election challenges must be resolved before the ballot printing deadline,” said the pair. “[And] as a practical matter, invalidating Prop 140 after voting has already begun would result in electoral chaos and damage voter confidence in the efficacy of their votes.”
That ballot printing deadline occurred a day after the Arizona Supreme Court remanded the case to the Maricopa County Superior Court for review, citing the exclusion of evidence pertaining to 40,000 duplicate signatures. The exclusion of those contested signatures reduce petition signatures to what is below the total required to qualify for the ballot.
Though the Maricopa County Superior Court did find that nearly all of the 40,000 signatures were duplicates, the court ruled that the state constitution didn’t allow for those votes cast on Prop 140 to be ignored. That ruling led to the appeal which the Arizona Supreme Court now considers, and with which Richer and Bennett disagree.
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Two of Arizona’s Supreme Court justices are facing a fight for their future tenure on the bench.
This November, Arizona voters will have the opportunity to retain two key votes on the state’s high court, Justices Clint Bolick and Kathryn King. Both justices have demonstrated a consistent standard for standing on the principle of the law, not politics, though their stances have often angered outside interests – including the groups now attempting to remove them from the court.
Bolick and King were appointed by former Arizona Governor Doug Ducey. Bolick received his appointment to the Arizona Supreme Court in 2016, while King obtained hers in 2021. Both justices served in the private sector as attorneys prior to making their journey to the state court.
According to the Arizona Commission on Judicial Performance Review (JPR), both Bolick and King received extremely high marks to meet the standards on the merits of their decisions. The Commission “exists to provide meaningful and accurate information to the public for its use in voting on the justices and judges appointed to the bench through merit selection.” In his average of all evaluation categories, Bolick acquired 97% or greater. King had 90% and over for her categories. The JPR is used for voter recommendations for each cycle’s judicial retention elections.
For most voters in Arizona, judicial retention contests are often met with more apathy than any other selection(s) on their ballots. In recent elections, however, outside groups have put more of a target on judges for increased voter scrutiny, leading to the addition of Bolick and King with this year’s ballot choices. This is Bolick’s second retention election and King’s first.
Earlier this year, Bolick and King drew the ire of progressive groups after their votes in a controversial abortion case. The group helping to lead the efforts to oust the two justices, Protect Abortion Rights Arizona, posted on its website, “Arizonans need a fair judiciary that will protect our rights. This year, Arizona voters will decide whether to vote out two of the Supreme Court justices who voted to uphold the total, 160-year old abortion ban.”
In an op-ed published in The Arizona Republic this past May, Bolick explained his vote on the abortion case. He wrote, “Serious commentators, liberal and conservative, who actually read the decision (which I encourage voters to do), agree it is solidly grounded in law. We had before us not a question of policy, or even of constitutionality, but simply whether the Legislature in 2022, following the U.S. Supreme Court’s Dobbs decision, restored an earlier abortion restriction. After careful analysis, we concluded it did.”
The high-profile justice continued: “I cannot count the number of cases in which I have voted against my policy preferences. One example is when Gov. Doug Ducey vetoed nearly two dozen conservative bills over a budget dispute with the Legislature. They were passed again, then challenged by the Arizona School Boards Association. We struck them all down because they were passed unconstitutionally as part of the budget rather than as standalone bills.”
The case that Bolick was referring to in his piece was Arizona School Boards Association v. Arizona. The plaintiffs had challenged four budget reconciliation bills – HB 2898, SB 1824, SB 1825, and SB 1819. The court unanimously decided that the bills were void in part because of they violated the title requirement, and that SB 1819 was entirely void because it violated the single subject rule. Justice Bolick factored into the decision of the court, yet King recused herself. According to the court, the Arizona constitution “requires that appropriations beyond the scope of the general appropriations bill ‘shall be made by separate bills, each embracing but one subject.’”
As the court wrote in its conclusion, “We respect the role of the legislature in the discharge of its constitutional duties, including in its budgetary processes, and we heed our constitution’s fundamental premise that the division of powers necessarily impels judicial restraint, particularly in the realm of lawmaking. But this Court’s constitutional duty to interpret and apply the constitution requires us to invalidate a law if it infringes the constitution. Thus, today we do not intrude upon the legislature’s unique constitutional authority; instead, we merely exercise our own such authority to interpret, apply, and enforce the Arizona Constitution’s command that the legislature’s acts comply with the title requirement and the single subject rule.”
Judicial Independence Defense PAC has taken the side of Bolick and King, working to convince enough voters to retain these two justices in the upcoming fall election. The group warns that these retentions have been grossly politicized, and that Arizonans will pay the price if Bolick and King are removed from the bench. The PAC states, “From the federal level on down, we’ve seen politics creep its way into the judicial branch. But our courts should be independent, and in Arizona they have been. According to published media reports, out-of-state liberal groups like the National Democratic Redistricting Committee and Planned Parenthood Votes have budgeted $5 million to take over Arizona’s Court and defeat Justices Clint Bolick and Kate King. If they succeed, liberal Governor Katie Hobbs will get to choose their replacements, giving liberals a majority on the Arizona Supreme Court for the first time.”
These cautionary words from the Judicial Independence PAC echoes what Bolick also penned in his aforementioned op-ed. Bolick said, “The groups opposing us need a serious civics lesson about the role of the courts. Nowhere in their materials will you read about the importance of an independent judiciary in protecting our free society. Instead, they think we should decide cases based on the ‘will of the people.’ How do we determine that? Commission a poll? Convene a focus group? Simply assume the Legislature always reflects the will of the people?”
Bolick answered his questions with a quote from the late U.S. Supreme Court Justice Sandra Day O’Connor, saying, “As Justice O’Connor put it following her retirement, ‘the judiciary should not respond to public opinion in its individual decisions,’ but instead should be ‘accountable to the public for its constitutional role of applying the law fairly and impartially.’ That is what the iconic image of the scales of justice is all about.”
Daniel Stefanski is a reporter for AZ Free News. You can send him news tips using this link.
The Arizona Supreme Court ruled on Friday that nearly 98,000 Maricopa County voters whose citizenship documents got caught up in a coding error will be allowed to vote full ballot in November. Maricopa County Recorder Stephen Richer had moved to have them relegated to voting ‘Fed Only’ in November.
The court received several amicus briefs from voters and organizations across the political spectrum arguing against the move, including the Arizona Republican Party; the League of Women Voters of Arizona; Coconino County Recorder Patty Hansen and Pima County Recorder Gabriella Cazares-Kelly; as well as the Carlos Apache Tribe, Living United for Change in Arizona, League of United Latin American Citizens of Arizona, Mi Familia Vota, and the ACLU of Arizona.
The Republican Party of Arizona (AZGOP) filed an amicus brief Thursday calling upon the court to intervene and prevent the removal of 98,000 voters from the rolls whose registrations were potentially endangered by a controversial clerical error by state officials.
On Tuesday, Arizona’s Democrat Secretary of State Adrian Fontes announced that 97,000 inividuals would be impacted by an error that could prevent them from voting in state-level elections such as state legislative races, initiatives, and referenda. The error affects voters who were issued an Arizona driver’s license prior to October 1, 1996. The figure represents over 2.5% of the state’s total registered electorate. The outlet noted that a technical issue reportedly caused the error which has been resolved, however, the status of those affected is unclear.
In a statement published Thursday the AZGOP announced:
“Today, the Republican Party of Arizona filed an amicus brief in the Arizona Supreme Court supporting the preservation of voter rights in the case involving nearly 100,000 voters whose registration statuses were jeopardized by a state government clerical error.
The AZGOP urges the court to protect voters from sudden disenfranchisement and argues that the requested relief from Petitioner Maricopa County Recorder Stephen Richer violates both state and federal law.
The AZGOP’s amicus brief notes the importance of adhering to the National Voter Registration Act (NVRA), which prohibits systematic voter removals within 90 days of a federal election, and argues that the removal of voters based on this clerical error violates due process and the U.S. Constitution. The AZGOP maintains that any action taken to correct these registration issues should not result in the disenfranchisement of voters who have long participated in Arizona’s elections without issue.”
Gina Swoboda, AZGOP Chair said in a statement:
“Regardless of any outcome on this matter, all of these voters will receive a Federal Only ballot which permits them to vote for President, U.S. Senate, and U.S. Congress. The only question before us is if these voters, who have possessed an Arizona driver’s license since before October 1996, should be denied the right to vote for their representatives in the Arizona legislature, county, school board, and ballot measure contests.
Our brief makes it clear: nearly 100,000 Arizona voters should not be penalized for a mistake made by the government. We will not stand by as voters are disenfranchised, especially so close to an election. The law requires that any changes to voter registration or eligibility must be handled carefully and in accordance with federal and state law. Rushing to disenfranchise voters now would not only be illegal but would severely undermine confidence in our elections.”
In a lengthy post to X, Richer justified his lawsuit saying:
“My office discovered this issue last week, and we have been working with the Governor’s Office, the Secretary’s Office, the MVD, and the Attorney General to fix this moving forward. The number is about 97,000 registrants across the state. All of these people have attested under penalty of law that they are U.S. citizens. And, in all likelihood, they almost all U.S. Citizens. But they have NOT provided documented proof of citizenship. Moving forward (2025 onward), everyone agrees we need DPOC for those voters for them to vote a full ballot. But the Secretary and I have different opinions on what the law requires for the November 5, 2024 General Election. It is my position that these registrants have not satisfied Arizona’s documented proof of citizenship law, and therefore can only vote a ‘FED ONLY’ ballot.”
Later today, my office (@RecordersOffice) is suing the Secretary's office (@AZSecretary) regarding how to handle certain voters who need to provide documented proof of citizenship.
Since 2004, Arizona has been the only state in the country to require that a voter provide…
— Stephen Richer—MaricopaCountyRecorder (prsnl acct) (@stephen_richer) September 17, 2024
In the text of the amicus brief, the AZGOP argues that the declaratory judgment requested by Maricopa County Recorder Stephen Richer would stand in violation of both the First and Fourteenth Amendments to the U.S. Constitution, Arizona’s Free and Equal Elections Clause, as well as the National Voter Registration Act. The party’s legal team explained, “It is difficult to imagine state action that would impose a more ‘severe’ burden on the right to vote than abruptly informing an individual who has lived and voted in Arizona for decades—and previously voted in all elections, state and federal—that they must suddenly prove that they are a U.S. citizen in the handful of days remaining before Arizona’s October 7 voter registration deadline if they want to vote in state elections this year.”
BREAKING, VICTORY: AZ Supreme Court REFUSES to Order Recorders To Move 98,000 Long-time Arizonans To Fed-Only List Weeks Before Ballots Hit the Mail
Chief Justice Ann Scott Timmer writing for the majority ruled:
“In sum, Richer has not established that the county recorders have statutory authority to remove the Affected Voters from being able to vote in the upcoming 2024 General Election for federal offices and with respect to matters on an Arizona ballot. This is particularly true under the present facts, where a state administrative failure permitted the Affected Voters to be registered without confirming that they provided DPOC when they received their driver’s licenses and where there is so little time remaining before the beginning of the 2024 General Election.”
She continued, “Arizona law provides that ‘[w]hen the county recorder obtains information pursuant to this section and confirms that the person registered is not a United States citizen,’ the county recorder is to initiate a process to cancel a registration that includes sending the person notice that the person’s registration will be canceled in thirty-five days unless the person provides satisfactory evidence of United States citizenship. A.R.S. § 16-165(A)(10). Although challenges are pending to various aspects of the statute, subsection (A)(10) recognizes the right of any voter to notice and an opportunity to contest any determination of a voter’s ineligibility. A county recorder can therefore proceed with respect to individual voters under § 16-165(A)(10) as long as the provision’s due process requirements are followed… Regardless, we are unwilling on these facts to disenfranchise voters en masse from participating in state contests. Doing so is not authorized by state law and would violate principles of due process.”
Arizona voters should be able to have complete trust in their elected officials to conduct themselves honorably, ethically, and lawfully in every matter concerning our sacred elections.
Too bad Secretary of State Adrian Fontes never got the memo.
In the midst of firing off baseless attacks against our organization after a court ruled in our favor against his radical Elections Procedures Manual, Fontes found a new way to violate the ethics of his office…and maybe the law.
Last week, in an unexpected, politically motivated, and potentially unlawful use of taxpayer dollars, Fontes filed a brief at the Arizona Supreme Court in an effort to ensure that votes for Prop 140 are counted in the November General Election—regardless of its eventual legality.
Think about that for a moment. By filing this brief, Adrian Fontes—the top election official in our state—unequivocally signaled his position that 40,000 duplicate signatures should be ignored and counted in favor of passing Prop 140. In short, this means that for Fontes, the ends justify the means to ensure that Arizona adopts a California-style election scheme that includes ranked-choice voting and jungle primaries. But that shouldn’t come as much of surprise…because it’s exactly what he’s been working for…
Throughout history, we have witnessed the horrors that unfold when societies dehumanize entire groups of people. In the era of slavery, Black people were considered less than human—mere property to be bought, sold, and exploited. During the Holocaust, Jews were labeled as “subhuman” and systematically exterminated. Today, we look back on these atrocities with disbelief and sorrow, wondering how such inhumanity could have ever been justified. And yet, in our current era, we face a similar moral crisis with abortion—a modern-day holocaust where the humanity of unborn children is denied, and their lives can be murdered right up to the moment of birth.
Proposition 139 is not just another policy debate—it is a question of life and death. If passed, this proposition would permit the killing of unborn children until birth. The Arizona Supreme Court recently ruled that the term “unborn human being” will remain in the ballot language for this proposition. This decision challenges us to face the uncomfortable truth: the lives at stake are not mere “fetuses” or “clumps of cells” but human beings in their most vulnerable form.
The Arizona Abortion Access Campaign, which claims to stand for “truth,” has fought fiercely to exclude the term “unborn human being” from the language of Proposition 139. Why? Because they understand that words matter—words shape perceptions. If voters are confronted with the reality that abortion involves the killing of an unborn human being, they might see through the euphemisms of “reproductive rights” and “women’s health” to the brutal truth.
Yet, the scientific truth is clear. According to Keith L. Moore’s The Developing Human: Clinically Oriented Embryology (6th ed., 1998), “Human development begins at fertilization, the process during which a male gamete or sperm unites with a female gamete or oocyte to form a single cell called a zygote. This highly specialized, totipotent cell marks the beginning of each of us as a unique individual.” From conception, a developing life in the womb carries its own unique DNA—a distinct genetic blueprint that is undeniably human. To deny this is to deny biological reality in favor of a narrative that serves a political agenda.
Consider the parallels. In both slavery and the Holocaust, those in power used language and rhetoric to strip away the humanity of their victims. Slaves were considered property, not people. Jews were referred to as “vermin.” These labels made it easier to carry out heinous acts without facing the moral consequences. Today, the abortion industry reduces the unborn to “fetuses,” distancing from the murderous act of abortion and its reality—the ending of a human life.
Despite this, Dawn Penich, a spokesperson for Arizona for Abortion Access, argued that the court’s decision to use the term “unborn human being” would prevent voters from understanding the ballot in a “fair, neutral, and accurate way,” claiming they would be “subjected to biased, politically-charged words developed not by experts but by anti-abortion special interests to manipulate voters and spread misinformation.” But isn’t it more manipulative to hide the biological reality of what abortion truly involves?
The irony is staggering.
The Arizona Supreme Court’s decision to allow the term “unborn human being” on the ballot forces us to confront what is truly at stake. This is not just a matter of “reproductive rights”—this is about whether we, as a society, will sanction the destruction of human life up to the point of birth.
History has taught us the catastrophic consequences of dehumanization. In every era, from slavery to the Holocaust, society’s refusal to recognize the humanity of its victims has led to unspeakable horrors. Today, abortion stands as the latest chapter in this tragic story—a chapter that will be judged by future generations. Will we turn a blind eye, or will we stand for the truth that every human life, born or unborn, deserves recognition and protection?
As Arizona voters head to the polls in November, they must decide whether they will be complicit in this modern-day holocaust or whether they will choose to defend the most fundamental of all human rights: the right to life. The fight over language is a fight over truth, and truth, once revealed, compels us to act. Let us not be found on the wrong side of history.
Katarina White serves as Board Member for Arizona Right to Life. To get involved and stay informed, visit the Arizona Right to Life website.
