Pima County Superior Court Judge Gus Aragon has issued a ruling in the lawsuit brought by Oro Valley resident Don Bristow against recall election candidates Joseph Winfield and Doug Burke. Bristow claimed that Winfield and Burke submitted invalid nomination petitions.
The judge found that while the candidates did submit invalid petitions, new ballots could not be issued to voters because ballots had already been cast.
The following is a timeline of events:
On September 1, 2015, plaintiff Bristow receives the nominating petitions for candidate Winfield.
September 4, 2015, is the last day nominating petitions can be filed.
Winfield and Burke submitted a sufficient number of signatures however as noted in the Judge’s final ruling:
Bower does not recall ever rejecting a recall candidates nominating petition. She saw no reason to reject any of the defendant candidates’ petitions in this case after reviewing the issue with her office’s election attorney. She consulted with the attorney because she did have questions about some of the submitted petitions. There is no dispute that the Burke petitions did not have any certification on the back pages and that some of Winfield’s petitions did not have complete information from the circulator.
State statute requires that challenges must be filed within 10 business days, (not including weekends and holidays) of the last date that nomination petitions can be submitted which was September 4, 2015. By statute the plaintiff had until September 21, 2015 to file a challenge. Bristow’s filing was made before the deadline.
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On September 8, 2015, plaintiff calls Pima County and leaves a message asking for someone to return his call and answer his question about challenging nomination petitions. Late in the afternoon, Chris Roads returns his call. Plaintiff asked Roads if the names and signatures were in wrong columns. Roads responded that it sounded like the plaintiff was preparing to challenge. Plaintiff responded in the affirmative and asked about the timing of a challenge. Roads told the plaintiff that he had 10 business days in which to file a challenge. He speaks to Roads prior to filing the lawsuit and prior to speaking to an attorney. Roads directs the plaintiff to the statute that deals with the procedure and the time limits of filing a petition nomination challenge. However, Roads neglects to tell the plaintiff that the ballots will be sent out on September 18 due to Federal mandate to our military people overseas. The deadline per state statute for filing the challenge was September 21. Roads knew at that time ballots were going out to military servicemen and women stationed overseas.
On September 8, 2015, at 2:42:29 PM MST, in an email with the subject: Public Records Request Notification, Mike Standish advises plaintiff’s wife in response to her request for candidate Burke’s nominating petitions, with full knowledge that the defendants’ petitions did not conform to State law:
Hi Diane, the records you had requested are available via the link below. No information was contained on the back of the petition so I only scanned the front. Thank you.
On September 8 or 9, according to Judge Aragon’s ruling:
With respect to the recall ballots, Bower testified that the process of drafting the ballot began in July of this year and involves exchanging drafts of the ballot with Pima County election officials over a period of a few months. The last proof was approved by Bower on Sept. 8 or 9 of this year. The ballots were printed in final form on September 17, 2015.
On September 15, 2015 plaintiff’s attorney sent a public record request to Oro Valley Clerk Ms. Bower that should have raised a red flag at that time that the suit was coming.
On September 17, 2015 the ballots were printed in final form.
On September 18, 2015, according to the judge’s ruling certain voters were sent ballots between 8 and 8:15 AM. The judge’s ruling reads:
Roads testified that the ballots had to be finalized and transmitted to certain out of state voters by Sept. 19 of this year, which is a Saturday. Because of lack of access to his office that day, ballots that had to be sent to certain of the voters electronically were sent on Sept. 18 between 8 and 8:15 AM. The first electronic ballot by the first voter was cast electronically on September 18, 2015 at 11:56 AM.
September 18, 2015 at 11:56 AM., the first voter cast their ballot electronically.
On September 18, 2015 at approximately 8:30 AM, plaintiff Don Bristow filed a challenge of the nominating petitions for Joseph Winfield and Douglas Burke in Pima County Superior Court 3 days earlier than what was permitted by state statute. At approximately 9:30 AM, attorney Bill Risner’s clerk personally hand-delivered the filing to the judge’s staff, so a hearing could be set as soon as possible. The judge’s staffed called Risner’s our office at about 11:00 AM asking about dates and times to set the hearing. At about 2:00 p.m. the judge signed the order and set the hearing.
September 21, 2015 is the last day to file a challenge of candidate petitions.
On September 23, 2015 Pima County Superior Court Judge Gus Aragon hears testimony in the Bristow lawsuit.
On September 24, 2015 Aragon hears testimony in the Bristow lawsuit and advises attorneys that he would render a decision later that day. No decision is rendered by close of business.
On September 25, 2015 at 10:58:46 AM, Judge Aragon issues a decision in which he rules against Bristow: His ruling reads in part:
Defendants Roads and Nelson testified as to their roles in the ballot preparation and transmission process and their respective understandings what state law requires in this type of election. Roads testified that the ballots had to be finalized and transmitted to certain out of state voters by Sept. 19 of this year, which is a Saturday. Because of lack of access to his office that day, ballots that had to be sent to certain of the voters electronically were sent on Sept. 18 between 8 and 8:15 AM. The first electronic ballot by the first voter was cast electronically on Sept. 18, 2015 at 11:56 AM. Plaintiff s lawsuit was filed several hours after the first electronic vote was cast. By the time of this evidentiary hearing some 4 electronic votes had been cast. Roads testified that if the ballots need to be changed to delete defendant candidates’ names, thousands of ballots will need to be destroyed, reprinted, stuffed into envelopes and mailed. Pima County plans to have the mailed ballots in the mail to the voters by Oct. 8, 2015. Changing the ballots as of the date of this evidentiary hearing will present great logistical challenges, something “between a tsunami and a tidal wave,” according to Roads.
The government defendants claim that Plaintiff delayed too long in filing suit and that his claims are barred by laches and rendered moot by the fact that electronic voting had begun before he filed his special action. The also claim that some voters may be disenfranchised if the ballots are changed at this point.
Plaintiff testified that as a concerned citizen he began to look into these matters as soon as he could. He obtained copies of Winfield’s petitions on September 1, 2015 and Burke’s petitions on Sept.8. He investigated the issues as quickly as he reasonably could and sought legal advice in a timely manner. He had some help with expenses and investigation, but still was up until 2 AM on some nights looking into the validity of the signatures on the petitions. Based upon the evidence presented the Court finds that the Plaintiff is not subject to the defense of laches. Further, the Court finds no intentional wrongdoing on the part of any of the defendants.
However the Court finds that the issues raised by Plaintiff became moot as of the time the electronic ballots were sent out on Sept. 18, 2015 and certainly by the time the first electronic ballots were received on that morning. Rapier v. Superior Court of Greenlee County, 97 Ariz. 153 (1964). The Court has weighed the competing interests of the parties, voters, taxpayers, and the citizens of Oro Valley and finds that this matter is now moot. IT IS THEREFORE ORDERED dismissing these statutory actions for injunction. No further matters remain pending and judgment is entered pursuant to Rule 54(c).
On September 25, 2015 at approximately 12:00 NOON, the Town of Oro Valley receives notice of Aragon’s ruling.
On September 25, 2015 at approximately 12:15 PM, Oro Valley residents claim to be receiving robocalls from Oro Valley Mayor Satish Hiremath advising them that the judge has ruled in favor of candidates Burke and Winfield and inviting the public to a town hall. They are told to go to (www.ovleadership.com) for more information. They are given the phone number 520-481-0700 to call with questions. When that number is called Hiremath asks them to leave a name and number. Hiremath claims that the calls he ordered did not reference the ruling.