Lachance v. Cty. of Cochise

553 P.3d 176

Daniel LACHANCE, Henry Stephen Conroy, Yvonne Mayer, and Robert McCormick, Plaintiffs/Appellants/Election Contestors,

v.COUNTY OF COCHISE; Cochise County Jail District; Board of Supervisors of Cochise County; and the following in their official capacities: Supervisors Ann English, Peggy Judd, and Tom Crosby; Cochise County Recorder; and Cochise County Elections Director, Defendants/Appellees/Election Contestees.

No. 2 CA-CV 2023-0236

Court of Appeals of Arizona, Division 2.

Filed June 25, 2024

Appeal from the Superior Court in Cochise County, No. S0200CV202300363, The Honorable David Thorn, Judge. AFFIRMED IN PART; REVERSED IN PART AND REMANDED

Charles R. Johnson, Scottsdale, Counsel for Plaintiffs/Appellants/Election Contestors

Brian McIntyre, Cochise County Attorney, By Christine J. Roberts, Chief Civil Deputy County Attorney and Paul Correa, Civil Deputy County Attorney, Bisbee, Counsel for Defendants/Appellees/Election Contestees

Judge Sklar authored the opinion of the Court, in which Vice Chief Judge Staring and Judge O’Neil concurred.

OPINION

SKLAR, Judge:

¶1 This appeal arises from an election contest involving a jail-district election. It requires us to determine whether voters on a state-mandated "inactive voter list" were entitled to receive ballots in the district’s allmail election. We conclude that they were.

¶2 The contest concerns a May 2023 election, in which Cochise County voters approved the jail district’s creation, as well as the imposition of an accompanying tax. As authorized by A.R.S. § 16-558, the election was conducted entirely by mail. Four county residents, the "Contestors," then filed this contest. They argued that the county had disenfranchised approximately 11,000 voters on the inactive list by failing to send them ballots. The superior court granted a motion to dismiss the complaint. It concluded that Contestors had failed to state a claim under Arizona’s election-contest statutes.

¶3 We conclude that the superior court erred. Assuming as we must that Contestors’ well-pled factual allegations are true, they have stated a claim. Because this was an allmail election, the county was required to mail ballots to "each qualified elector entitled to vote in the election." A.R.S. § 16-558.01. Qualified electors include those on the inactive list. But the county failed to mail ballots to those voters, thus disenfranchising them. Contestors are therefore entitled to proceed with their claim. However, the superior court properly concluded that Contestors failed to state a claim on several other grounds for the contest. These include Contestors’ allegation that the tax required sixty percent of the votes and that the Cochise County Attorney lacked the power to defend this case. We therefore affirm the court’s dismissal on those grounds.

FACTUAL AND PROCEDURAL BACKGROUND

¶4 In November 2022, the Cochise County Board of Supervisors formed the jail district, a special taxing district, to construct a new jail. The jail would be financed by an excise tax, subject to voter approval at an election held in May 2023. According to official election results, 12,891 voters supported the tax, and 12,141 voters opposed it. We take judicial notice of these results. Cf. Bolin v. Superior Court., 85 Ariz, 131, 136, 333 P.2d 295 (1958); Ariz. R. Evid. 201.

¶5 In June 2023, Contesters filed a statement of contest under A.R.S. §§ 16-672 and 16-674, The defendants, collectively "the County," moved to dismiss for failure to state a claim upon which relief can be granted. Thereafter, Contestors filed an Amended Statement of Contest and an application for default judgment. After a hearing, the superior court granted the motion to dismiss the matter with prejudice. This timely appeal followed.

JURISDICTION

[1–3] ¶6 Preliminarily, we must address whether the superior court had jurisdiction. See Dowling v. Stapley, 221 Ariz. 251, n.13, 211 P.3d 1235 (App. 2009) ("Generally, subject matter jurisdiction of the superior court cannot be waived."). The right to contest an election is created by statute, which defines the means and manner of effectuating that right. See Donaghey v. Att’y Gen., 120 Ariz. 93, 95, 584 P.2d 557, 559 (1978). Thus, the time limits to contest an election under Arizona’s election-contest statutes are "mandatory, and unless strictly complied with [t]he court is without jurisdiction to proceed." Id.

¶7 The statement of contest was required to be filed within five days after completion of the canvass of the election and declaration of the election result. See A.R.S. §§ 16-673(A), 16-674(A). In special-district elections, the canvass is not complete until a presentation to the board of supervisors is conducted. A.R.S. § 16-642(B).

¶8 Here, the results were certified on May 25, and the presentation to the Cochise County Board of Supervisors occurred on June 6. Contestors filed their statement of contest on June 12. Although this was six calendar days after the canvass was completed, the fifth day to file the statement of contest was a Sunday.

¶9 In a nominating-petition challenge, our supreme court determined that "if the fifth day for filing an election appeal falls on a Saturday, Sunday, or state holiday, a notice of appeal will be deemed timely if filed on the next business day." Bohart v. Hanna, 213 Ariz. 480, n.2, 143 P.3d 1021 (2006). It reached the same conclusion concerning election contests, albeit in an unpublished decision order. Burk v. Ducey, 2021 WL 1380620, *1 (Ariz. Jan. 6, 2021); accord A.R.S. §§ 1-301(A)(1), 1-303. We do the same and conclude that the statement of contest was timely. Thus, the superior court had jurisdiction and, given the timely notice of appeal, we do as well.

MOTION TO DISMISS

¶10 Section 16-672 authorizes electors to contest an election, including the result of any "question or proposal submitted to the vote of the people." A contest may be raised only on five enumerated grounds. Contestors raise three: (a) "misconduct" by certain officials; (b) "illegal votes"; and (c) an "erroneous count of votes." § 16-672(A)(1), (4)-(5); see also § 16-674(A) (same grounds and manner for contesting county and local elections).

I. Standard of review

[4–6] ¶11 Arizona has a "strong public policy favoring stability and finality of election results." Donaghey, 120 Ariz. at 95, 584 P.2d at 559. Consistent with this policy, for more than a century, official returns have been deemed prima facie evidence of the number of votes cast. Hunt v. Campbell, 19 Ariz. 254, 268, 169 P. 596 (1917). Even substantive irregularities do not supply a basis for invalidating an election if they do not affect the result or render it uncertain. Miller v. Picacho Elem. Sch. Dist. No. 33, 179 Ariz. 178, 180, 877 P.2d 277, 279 (1994). Thus, unless a "statute expressly provides that non-compliance invalidates the vote," a challenger must show that ballots were "procured in violation of a non-technical statute in sufficient numbers to alter the outcome of the election." Id.

¶12 Because this is an appeal from the grant of a motion to dismiss for failure to state a claim upon which relief can be granted, we must apply this standard through the lens of Rule 12(b)(6) of the Arizona Rules of Civil Procedure. See Lake v. Hobbs, 254 Ariz. 570, ¶ 25, 525 P.3d 664 (App. 2023), vacated, in part on other grounds, No. CV-23-0046-PR, 2023 WL 7289352 (Ariz. Mar. 22, 2023) (order) (considering election contest under Rule 12(b)(6) standard). Under Rule 12(b)(6), dismissal is appropriate if "as a matter of law … plaintiffs would not be entitled to relief under any interpretation of the facts susceptible of proof." Coleman v. City of Mesa, 230 Ariz. 352, ¶ 7, 284 P.3d 863 (2012) (quoting Fid. Sec. Life Ins. Co. v. State Dep’t of Ins., 191 Ariz. 222, ¶ 4, 954 P.2d 580 (1998)). We assume the truth of all well-pled factual allegations and indulge all reasonable inferences. Id. ¶ 9. We review the superior court’s ruling de novo. Id. ¶ 7.

II. Whether Contestors stated a claim for illegal votes under Section 16-672(A)(4)

¶13 We first address Contestors’ claim that the County accepted illegal votes in violation of A.R.S. § 16-672(A)(4). Their illegal-votes claim relies on the alleged disenfranchisement of the inactive voters.

A. Procedural issues

¶14 Before addressing the illegal-votes claim substantively, we must resolve two procedural questions: (1) whether the claim was timely asserted after the election; and (2) whether we may consider the factual allegations in the Amended Statement of Contest despite it having been filed after the five-day deadline.

1. Whether the claim was timely asserted

¶15 The County argues that Contestors’ challenge regarding the disenfranchised voters was a procedural challenge that is time barred because it was not brought before the election. At oral argument, the County further asserted that Contestors have no postelection remedy for disenfranchisement.

[7] ¶16 Our supreme court recently stated, "It is well-established that a litigant must challenge pre-election procedures prior to the election." Ariz. Republican Party v. Richer, 257 Ariz. 210, ¶ 26, 547 P.3d 356 (Ariz. May 2, 2024). However, this court concluded in Moore v. City of Page, 148 Ariz. 151, 154-56, 713 P.2d 813, 816-18 (App. 1986), that a claim of voter disenfranchisement is not a pre-election procedural challenge. Like in this case, the contestors in Moore challenged the results of a special election. They asserted that voters were disenfranchised because ineligible electors were allowed to vote. Id. This court concluded that the contest could be brought after the election. Id.; see also Miller, 179 Ariz. at 179-80, 877 P.2d at 278-79 (involving post-election challenge to conduct in procuring votes from absentee voters).

¶17 The same analysis applies here. Contestors’ challenge relates not to pre-election procedures, but to the election itself. Contestors had no practical way to know that inactive voters would be prevented...