Just In: Judge Rules In Oro Valley Candidates Winfield, Burke Challenge
On Thursday, Pima County Superior Court Judge Gus Aragon heard the second day of testimony in a lawsuit brought by Oro Valley resident Don Bristow against recall election candidates Joseph Winfield and Doug Burke. Bristow claims that Winfield and Burke submitted invalid nomination petitions.
If the judge finds the petitions were invalid they should not have appeared as candidates on the November 3, 2015 recall election ballot. In a highly unusual move Pima County Elections Department printed and mailed ballots out before the statutory 10 days in which a candidate nomination can be challenged had lapsed.
On September 4, 2015, Winfield and Burke, along with four other Oro Valley residents, submitted invalid petitions to be declared official candidates for the recall election for Mayor Satish Hiremath, Vice Mayor Lou Waters, Councilmember Joe Hornat and Councilmember Mary Snider.
Winfield is one of two candidates slated to run against Mayor Hiremath and qualified challenger Pat Straney. Burke had hoped to run against Councilmember Mary Snider and her qualified challenger Shirl Lamonna. In August, Straney and Town Council Candidates Steve Didio, Ryan Hartung and Lamonna filed their nomination petitions. A minimum of 221 signatures was required for the Mayoral seat and 526 signatures for Councilmembers.
Unlike the referendum petition process, which the Town recently underwent in January 2015, there is no specific state statute granting the town clerk the authority to remove petition sheets in the recall candidate process; therefore, all candidate nomination petitions were accepted. However, the law for nomination petitions is clear: 16-321. Section D reads: “A circulator shall verify that each of the names on the petition was signed in his presence on the date indicated, and that in his belief each signer was a qualified elector who resides at the address given as the signer’s residence on the date indicated and, if for a partisan election, that each signer is a qualified signer.”
Related article: Continental School District voters to receive correct ballots
State statute allows 10 days for any resident to challenge the validity of those petitions, and Bristow filed within that time allowance.
The Town of Oro Valley filed its legal response and hearings were scheduled in Pima County Superior Court.
Both Pima County and the Town of Oro Valley fought Bristow in Court with multiple defenses for their ballot error.
While Pima County argued that it would be too onerous to create new ballots without Burke and Winfield, the County had done just that in the case of the Continental (CESD) school board race in 2014. In that case, the County Superintendent of Public Schools, Linda Arzoumanian, sent ballots to the Continental School District voters directing voters to “vote for no more than 3 candidates” despite the fact that there were only 2 available seats.
One popular candidate, Sergio Arellano, who appeared to be disenfranchised by the Office of the Pima County School Superintendent’s error, called for a special election to be held after the General Election. The County, which has a reputation for less than above board elections, denied the request. Instead, a new ballot, which only had the CESD race, was then mailed out to over 14,000 early ballot voters. The initial votes for CESD were disregarded, and only the votes on the second ballot were counted.
When asked about the Continental case on Thursday, Chris Roads confirmed that what occurred in Arellano’s situation was in fact possible. However it was barely touched upon by Roads again, as he seemed determined to dancing around the subject rather than offer it as solution in this case. While the Continental case seemed to set a precedent favoring the plaintiff, the defense held firm in its claim that precedents fell in its favor.
At one point in the defense’s closing arguments, attorneys for Oro Valley claimed that a precedent was set in an Arizona case which provided that in order to file a contest of nominating petitions, the complaint must be filed not just before the election, but before the ballot is even printed. It was unclear how it would be physically possible to file an action against something that cannot and does not exist at that point in time.
The defense argued that any remedy after the ballots were printed would be simply impossible. Defense attorneys implied that the CESD solution would over complicated matters. They insisted that reprinting was not the solution, nor was it a simple one because military and out-of-country voting was already occurring by the time the complaint had been filed.
Despite the fact that law and legal precedent appeared to be on his side, it will be an uphill climb for plaintiff’s attorney Bill Risner and his staff. Judge Aragon showed little to no interest during Risner’s closing argument. With Aragon’s history of ruling against the citizenry and his verbal jabs at Risner, it is likely that Oro Valley residents will have quite a few unqualified candidates from which to choose.
Aragon was expected to rule yesterday, however court staff reported at 4:45 p.m. that no decision had been made.
Case documents:
View Risner Town of Oro Valley Records Request here
View Plaintiff Complaint Re: Winfield here
View Plaintiff Complaint Re: Burke here
View Joint Defendent Motion to Dismiss here
View Defendent’s Response to Statutory Injunction Items here