Arizona Supreme Court Clarifies Methods to Challenge Citizen Initiatives

By Joseph Kanefield, Eric H. Spencer,¹ and Tracy A. Olson

For those involved in the citizen initiative process, there are lessons to be learned from the Arizona Supreme Court’s recent decision involving a challenge to the signatures obtained by certain initiative petition circulators.

Since statehood, Arizona citizens have been able to propose amendments to the Arizona Constitution and changes to statutes by gathering petition signatures. Most of us have encountered these petition circulators at one time or another in front of the local public library or other locations around the State.  

The Legislature has enacted a series of laws to protect the integrity of the signature collection process, which include circulator registration requirements for statewide initiatives. Petitions circulated by a person who fails to register (prior to circulation) will be disqualified under existing law. Mussi v. Hobbs involved a challenge to the signatures gathered for an initiative entitled the “Arizona Fair Elections Act” — a lawsuit principally focused on circulator registration deficiencies. For example, one of the challenges alleged that signatures should be disqualified if a circulator is registered with the Secretary of State but not registered specifically for the Arizona Fair Elections Act initiative.

The measure needed at least 237,645 valid signatures to qualify for the 2022 ballot. The proponents turned in 399,838 signatures to the Secretary of State. But that only begins the qualification process. By law, the Secretary of State takes a five percent random sample of those signatures and sends them to the county recorders for verification. That process then yields an invalidity percentage rate. The county recorders determined that 4,852 signatures of the 19,992 signature sample were invalid, resulting in a 24.27% invalidity rate. The Secretary then applied that rate to the total signatures filed and determined that the measure qualified for the ballot with more than 237,645 projected valid signatures.

However, while that process was ongoing, opponents brought a lawsuit to strike signatures obtained by circulators who had allegedly violated the statutory circulator registration laws. The Superior Court ultimately determined that 95,825 signatures were invalid because of circulator deficiencies, some of which are summarized below. Some of the petition sheets disqualified based on circulator deficiencies also contained some individual signatures that had already been invalidated by county recorders during sampling review. 

The dispute in Mussi v. Hobbs hinged on the interplay between the statutory sampling process followed by the state and county election officials and the separate challenge process by which anyone can challenge the legal validity of a ballot measure.  

After struggling to harmonize the statutes involved in the initiative process, the court settled on an interpretation whereby a challenger can disqualify signatures obtained in violation of the petition circulator requirements, subtract those signatures from the total filed, and then also apply the invalidity rate to the remaining signatures as determined by the Secretary and county recorders in the separate statutory review process. Although this method appears to engage in “double counting,” the court chose this interpretation because it was the only interpretation that took into account all of the relevant statutes. In Mussi, this calculation resulted in the measure projecting a total of 226,555 valid signatures, which was slightly less than the 237,645 required, and therefore was struck from the ballot.

Justice Timmer dissented from the opinion, saying it was a mistake by the majority to apply the invalidity percentage rate established in the statutory review process to the separate legal challenge involving the signatures obtained by petition circulators in violation of registration requirements. Justice Timmer and the majority were, however, in agreement that parties, attorneys, and judges would benefit if the Legislature clarified the statutes on these points.

For those involved in the initiative process, the court’s particular interpretation of the petition circulator registration requirements provides guidance for future efforts. Specifically, according to the court, petition sheets will not be disqualified if:

• the circulator fails to provide a unit number as part of the circulator’s residential address on the back of the petition; or
• a circulator uses a nonresidential address as a temporary address on the registration application.

Petition sheets will likely be disqualified if:

• the circulator is not registered to circulate for the initiative, even if the circulator is registered to circulate for another initiative in the same cycle;²   
• the circulator uses an address for service of process which is different from the address of the committee for which the circulator is gathering petitions;  
• the circulator fails to include in circulator’s registration application a suite number if the circulator’s address is located in a multi-unit commercial building address, as the suite number is deemed necessary in order to effect service of process; 
• the circulator provides a different residential address on the petition sheet than what was provided on his or her registration form, and the parties stipulate that differing addresses were invalid unless it can be established that the difference was due to a change in the circulator’s residence; or
• the parties previously stipulated to a metric of inaccuracy or invalidity and the court applies that metric.

In fact, the court made clear that any defect in the circulator registration is subject to challenge under A.R.S. § 19-118(F), which may foreshadow other challenges in the future.  

The bottom line is those involved in the citizen initiative process should familiarize themselves with the court’s guidance in Mussi v. Hobbs, as it will control unless the Arizona Legislature revisits the laws governing this process. Understanding the nuances of this case could make the difference between a measure qualifying or not qualifying for the ballot.