The following information is for entertainment purposes only and is not intended to be legal advice. It is brief summary of the video tape of this workshop. This is a complex process, so please contact an attorney for legal advice. Tape counter numbers have been included throughout. The video is available through Geronimo Broadcastting, 100 Verde Valley School Rd. #105, Sedona, AZ 86351, (520)284-5917, geronimo@northlink.com
The speakers were Jessica Funkhouser, Arizona State Director of Elections; Sharon Keene-Wright, Yavapai County Director of Elections; Patsy Jenney Colon, Yavapai County Recorder and Head of Voter Registration; and Debbie Barber, Camp Verde Town Clerk.
The workshop provided information necessary to empower people to take action and get their issue on the ballot. You hear people constantly saying they either would like to put something new on the ballot, or would like to be able to vote to rescind some government-mandated decision with which they disagree, or would like to recall some elected official.
The workshop producer was H. Leon Raper, Camp Verde, AZ, (520)567-2900 phone, (520)567-2897 fax, hlr@raper.com, http://www.raper.com. Also see, Arizona Secretary of State, http://www.sosaz.com
Please note that the rules for cities & towns may be a little different than for state issues.
Video Tape Counter Information
00:00:00 Commercials
00:02:10 Pre-workshop - Backfire Program discussion and introductions
00:13:00 Workshop - Initiative/Referendum
01:11:30 Commercials
01:13:35 Workshop - Recall
01:40:00 Post-workshop discussion
01:50:00 End Backfire Program
ARIZONA CONSTITUTION
Initiative, Article 4, Part 1
STATE
Constitution: The people reserve the powers to propose laws just like the ligislators - The people reserve the power to legislate.00:17:00
Percentage of votes cast for all candidates for Governor in the last election.
10% of qualified electors to write a statute and get it on the ballot
15% of qualified electors to amend the constitution. 00:18:00
CITIES & COUNTIES
The people have the right to legislate any issue that the state, county, city
or town can legislate. 00:19:00
Ref: Hancock v. McCarroll, 188 Ariz. 492.937 P.2d 682 (Ariz. App. 1996) - No
initiative or referendum for a stadium district.
15% of qualified electors to propose an initiative
10% of qualified electors to propose a referendum
Cities & towns may enact ordinances regulating referendum, so long as they
do not directly conflict with the statutes, and they do not unduly impair constitutional
right of referendum 00:20:50
Ref: City of Tucson v. Consumers for Retail Choice, 2CA-CV 00-0035
Article IV, part 1, section 8: Incorporated cities, towns & counties may prescribe the manner of exercising said powers within the restriction of general laws. 00:21:00
FILING - STATEWIDE MEASURE
File with Secretary of State, not less than 4 months before the general election. 00:21:30
Article IV, part 1, section 10, Date of Election: The secretary of State shall cause the measure to be printed on the official ballot at the next REGULAR GENERAL ELECTION. (November of even numbered years)
COUNTIES have the same date for General Elections as does the State.
CITIES can be a little different because they may have different election dates.
EFFECTIVE DATE: If a majority of the votes cast on a measure are yes, then it passes. It then becomes effective upon proclamation of the Governor. The U.S. Dept. of Justice also gets involved to make sure everything is ok. This can be pre-cleared so there will be no delay. There is not set time for the Governor to sign the new law, but generally gets to it quickly.
Ariz. Constitution, Article XXII, ?? 14: Any law which may be enacted by the legislature may be enacted by the people. However, if the legislature cannot enact a law, then neither can the people. Or, the law cannot be enacted if it violates the U.S. Constitution, or the people couldn't enact a statute that violates the Arizona Constitution. 00:23:30
CITIES, TOWNS & COUNTIES
A.R.S. 19-141 says the duties of the Secretary of State for state legislation shall be performed by the city clerk for cities, by the town clerk for town matters, and by the officer in charge of elections for county matters.
A.R.S. 19-143, Municipal Initiatives: If the clerk determines there are enough valid signatures, then the clerk shall submit it to the voters at the next ensuing election. It must be submitted not less than 120 days prior to the next election (new case - Cuvelier). However, the council by ordinance may have a special election. 00:25:00
Election Dates: The legislature says that Cities can have elections in March, May, September, November. Each city and town picks when they have their elections. 00:25:30
Title 19, Arizona Revised Statutes
A.R.S. 19-102, Form of petition: Defines the physical characteristics and required contents of a petition. i.e. spaces, signature, lines, blocks of info, etc. 00:27:20
_____ paid circulator _______ volunteer. This box must be checked off or the petition is void.00/27/40
Campaign finance laws cannot require disclosure of name, address and amount paid to paid petition circulators. Ref: (WIN) Washington Initiatives Now v, Ripple, No. 98-35412 (9th Circ., May 25, 2000) 00:28:00
The petition circulator must witness all signatures. The circulator signs the back of each petition stating that he or she witnessed every signature. If petition signatures are not witnessed, the petition can be invalidated. If someone witnesses a petition being signed and not witnessed, they can call the appropriate office defined in A.R.S. 19-141 that indicates who to contact for state, countys or cities & towns. 00:28:50 & 00:30:20
A.R.S. 19-112, Serial Number: Before you can circulate a petition, you must apply for a serial number. You must put the serial number on the petition sheets. 00:31:30
You must have an address or description - no PO boxes allowed. This must be in the local in which you are registered to vote. 00:32:10
The full text of the petition should be attached. Every citizen should have the right to read it if they want. 00:32:30
Circulator: The affidavit of the circulator must be notarized. 00:32:40
The circulator only has to be elligible to register to vote - they don't have to be registered. They must be at least age 18, a citizen, a resident of the state, they can't be a convicted felon and can't be declared by a court as mentally incompetent. 00:33:00
A.R.S. 19-114Recorders and Justices of the Peace cannot circulate petitions. 00:33:10
Citizen Organization: An organization that is going to circulate a petition has to file a statement of organization. They must do this before obtaining any petition signatures, or all signatures will be invalid. An organization is defined as any group of people getting together to circulate a petition. 00:34:30
Once the group is ogranized, they must report every cent of organization expenses. 00:35:50
Any changes in the law that occur after the application is filed do not apply.
A.R.S. 19-121 Petition Format: The petition must contain the serial number, full text must be attached, paper size is 14" by 1-1/2", 15 signatures max per page.00:36:15
The petition can't be circulated more than 24 months before the general election. You can start circulating a statewide measure the day after the general election.
The petitions are void if not turned in on time.
A.R.S. 19-121.01 Receiving officer's duties: The receiving officer is defined in A.R.S. 19-141 for state, countys, cities & towns. 00:37:00
The receiving officer has 15 days, excluding saturdays, sundays and holidays to do a 5% random sample - checking that they have a signature on each line, address, date, notarized on the back, etc. 00:37:40
The state takes a 5% random sample (generated by the computer) and sends that sample out to the county recorder's office.
Ref: HB2656 ('99), No facsimile of circulator side. 00:37:15
The city or town receiving officer takes the same 5% random sample and sends that to the county recorder's office. 00:38:25
These random samples go to the county recorder's office because that is where the voter registration forms are kept.
A.R.S. 19-121.02 County Recorder: The recorder has 10 days, excluding Saturdays, Sundays and holidays to check all those signatures. 00:38:55
Changing your address: If you move within the county, it is a good idea to send in a new voter registration form. However, you can still go to your old polling place and vote and update your voter registration. In the mean time, if you haven't updated your registration, put your new address on any petition you sign. 00:39:00
HB2656 ('99): Don't check circulator. Pacuilla v. Cochise County Bd. of Supervisors, 186 Ariz. 367, 923 P 2d 833 (Ariz 1996) (ok if registered at different address in county) 00:39:00
A.R.S. 19-121.03 Count Challenge to County Recorder: The people can file a court challenge if they don't agree with what the county recorder did. This challenge must be filed within 10 days after the Secretary of State receives the Recorder's certification. This is not like the Rules of Civil Procedure! 00:40:15
Timeliness: Too late? Too bad. Ref: Open Primary Elections Now v. Bayless 193 Ariz. 43, P.2d 649 (Ariz. 1998) 00:40:20
A.R.S. 19-121.04 Disposition: After the receiving officer gets it back from the county recorder, they have 48 hours to do the math, excluding Saturdays, Sundays and holidays. 00:40:38
HB 2656 ('99): no disqualifying circulators any more.
Doing the Math - "Projection": There is a statutory formula that tells us how to do the math. The statute says that if the projection is over 105% then it is automatically on the ballot; f the projection is less than 95% then it is automatically off the ballot; if the projection falls in between then the county recorder must check all the signatures - that is unless the county recorder says they just cant do it, ref: Save Our Public Lands Coalition v. Stover, 135 Ariz. 461, 662 P.2d 136 (Ariz/ 1983). 00:41:00
A.R.S. 19-121.05 Recorder Reimbursement: The recorder gets reimbursed actual expenses, not to excede 50 cents per signature 00:42:00
A.R.S. 19-122 Challenge to Filing Officer: The people can bring a challenge to the filing officer. If the filing officer refuses to accept petitions turned in to them, then you have the right to take action in superior court, but you only have 10 days to file. If the opponents of an issue don't think the filing officer should have accepted the petitions, then they also have a right to take action in superior court. 00:42:05
Mootness: If early voting has already started, 33 days before the election, then it is too late to print the ballots again. The early ballots must be identical to regular ballots. Ref: Kromko v. Superior Court, 168 Ariz. 51, 57, 811 P.2d 12, 18 00:43:30
Laches: If a delay is unreasonable then it is too late to exercise your right to go to superior court. Ref: Mathieu v. Mahoney, 174 Ariz. 456, 851 P.2d 81 (1993). An example in Harris v. Purcell, 193 Ariz. 409, 973 P.2d 1166 (Ariz. 1998), held that a timely filed complaint wasn't served in time. By the time they got to court, the ballots were already printed, so they were too late. 00:43:35
Laches Factors: Some of the factors the courts are looking at are, justification for delay, extent of plaintiff's advance knowledge of basis for challenge, burden on the court - "steamroll" decision making, fairness to plaintiffs, fairness to proponents of measure, fairness to citizens who signed and circulated the petitions. 00:44:30
Other things to sue over: Pro and con arguments in the publicity pamphlet. They have to be filed at least 60 days before the election. 00:44:55
A.R.S. 16-124(B) Impartial Analysis: The legislative council on state wide matters is going to write an "impartial analysis" containing a description, clear and concise terms and avoiding technical terms, if possible. The purpose of the "impartial analysis" is to assist voters in rationally assessing a proposal by providing a fair, neutral explanation of the proposal's contents and the changes it would make if adopted. 00:45:50
Court Chalenge to Impartial Analysis: An example where the court said it was an impartial analysis is in Arizona Legislative Council v. Howe. An example where the court said it wasn't an impartial analysis is in Insurance Reform v. Greene, 180 Ariz. 582, 886 P.2d 1338 (1994) 00:46:25
A.R.S. 19-123(D) Fiscal Impact Summary: Starting in 2000, the state will be mailing out publicity pamphlets to all registered voters - not exceeding 300 words. Counties, cities and towns have always had to do these mailings on their issues. 00:47:00
Referendum has two forms. One form is the "legislative referendum" that allows the legislature to refer an issue to the people. This form can be started by the state legislature, county board of supervisors, and city or town councils. The other form allows the people to take out a petition and use the ballot box to overturn a statute passed by the legislature.
Percentage to qualify for referendum: 00:50:00
State: 5% of qualified electors - based on all votes cast for governor.
Cities & Towns: 10% of the votes cast in the last election for mayor or councilman. The clerk is required to make the calculations and provide the information upon request. 00:50:20
Emergencies: There is no referendum for an emergency. However, an emergency must pass the legislature by a 2/3 vote. 00:50:30
Support & Maintenance of Government: No referendum is allowed on a tax, funding or appropriation. 00:50:55
8 City, Town and County: A referendum can be taken out on matters that local jurisdictions have the power to legislate upon. Ref: Hancock v. McCarroll, 188 Ariz. 492, 937 P.2d 682 (Ariz.App. 1996) (no initiative in stdium districts). In certain districts there is no power of referendum.
4 Due Date - State Measures: You have 90 days from sine die (when the legislature goes home) - until a legislative action becomes a law. This is the time you have to take out a referendum. 00:52:13
A.R.S. 19-141(B) Due date for city referendums: 30 days after the ordinance or resolution is available. Sometimes an ordinance or resolution is memorialized in the minutes. If so, then it is 30 days after the minutes are available. Therefore, you need to get a clear definition from the clerk as to when it is available. 00:53:00
5 Effective Date: It becomes a law if a majority of the votes cast are yes votes. 00:53:30
Enforcable: It is not enforcable until the justice department has reviewed it - unless it has been pre-cleared. 00:54:50
A.R.S. 19-101 Form of petition: Is the same as discussed for the initiative process. That is, the paid circulator or volunteer box has to be checked off before obtaining signatures or the petition is invalid. 00:55:05
A.R.S. 19-121 City, County or Town: This is similar to that for the initiative process. The measure must be attached to the petition, or the ordinance or resolution, or the portion of the minutes defining the ordinance or resolution. For a zoning matter, you must obtain from the clerk, and attach a legal description and amendments to the ordinance. 00:55:25
A.R.S. 19-142 City, County or Town: City = 10% of the total votes for mayor or councilman in the last election. County = total votes cast for Governor within the county in the last election. 00:56:00
Q (Marshall Whitmire): What things are most frequently not done properly? 00:57:00
A (Funkhouser): Sloppiness. Missing Deadlines. Circulators not witnessing petition signings. Get info from the Officer (Clerk, etc.). When is the ordinance available? What is my deadline?
Q (Leon Raper): Question on petition being rejected due to the size of print that was changed by a copy machine. 01:02:25
A (Funkhouser): Opponents may really test font size, etc.
Comment (Debbie Barber): Some petitions have been submitted that have not been notarized.
Comment (Sharon Keene Wright): Some petitions were rejected because people used a PO Box instead of physical address. The petition for candidate election are a little different that the petition for initiative, referendum and recall. 01:04:35
Question (Jane Whitmire): I have been using my PO Box on petitions I have signed. Have those been invalidated.
A (......): Sometimes this is overlooked, but yes it could be invalidated. Judges will normally make their decisions based on their interpretation of the voter's intent.
Ariz. Consititution, Article VIII, pt 1: Every public officer holding an elective office by election or appointment is subject to recall. 01:14:10
Percentage to Recall: Is 25% of the votes cast in the last election for all candidates for the office held by the officer. For governor, count all the votes cast, then divide by the 01:14:25
Petition Statement (Grounds & Justification for Recall): The petition has space for a statement with a maximum of 200 words - stating whatever grounds you want. The officer can resign within 5 days. If they don't then there is a special election. 01:15:00
Candidates: 4 Incumbant (Recalee) ok, but others must file nomination petitions. The one with the most votes wins. 01:15:40
When to take out recall petition: After 6 months in first term in office. If they are relected they don't get a new 6 months grace period. For the state legislature they only a 5 day grace period after the start of the first session. 01:16:00
Second recall: If the encumbent won the 1st recall election, you can't take out a 2nd recall without paying the cost of the 1st recall election. 01:16:40
A.R.S. 19-201 How to do the math: For a city councilman, you take 25% of the votes for all councilmen and divide by the number of councilmen at the election. A county board of supervisors is different because it goes by district. If you are going to recall the governor it is just 25% of all the votes cast for all the candidates for governor. For a school board member, you take all the votes cast for all school board members, take 25%, and then divide by the number of board members who ran. For a state legislator, you take 25% of all the votes cast and divide by the number of legislators who ran. 01:17:20
A.R.S. 19-202 There is no renewal of the 6-month grace period given to new office holders. There must be a statement of organization filed before collecting petition signatures. 01:19:30
A.R.S. 19-202.01 Where to file application: State = Secretary of State; County = County Officer in Charge of Elections; City or Town = City or Town Clerk; Schools = County School Superintendent. 01:19:35
A.R. S. 19-203 Petition Processing: You can have an up to 200 word statement of grounds for recall. The petition must be turned in within 120 days from when it was taken out. 01:20:10
A.R.S. 19-204 Form of Petition: The county recorders are to verify every signature (per A.R.S. 19-205) and they must be registered to vote. The circulator doesn't have to be registered to vote, but they have to be qualified to vote in that election. For school districts, everyone that signs a petition must live in the school district and the circulators must live in the school district and be old enough, etc. For candidates, as long as you are ellegible to vote in the state of Arizona you can circulate anywhere, with the exception of school board elections. 01:20:40
A.R.S. 19-205.02 Prohibition on circulators: Recorders and Justices of the Peace cannot circulate petitions. 01:21:35
A.R.S. 19-207 Notice: After that petition comes back to the filing officer, and they have counted up the signatures, the filing officer has 48 hours to notify the incumbent that this is happening. The encumbent then has 5 days to resign, or 10 days to write a defense - that can be anything they want to say. 01:21:42
A.R.S. 19-208 Resignation: the incumbent has 5 days to resign, excluding Saturdays, Sundays and holidays, or the incumbent is automatically a candidate in the recall election. 01:22:15
A.R.S. 19-208.01 Receiving Officer: Has 10 days to do all the steps as would be done for an initiative petition (A.R.S. 19-121.01) 01:22:25
A.R.S. 19-208.02 Recorder Certification: The county recorder is going to check all the signatures. You must have physical addresses and not PO boxes to show you are in the jurisdiction. Then notice will be given to the proponents and Secretary of State or filing officer. HB2656 do not check circulator. 01:22:35
A/R/S/ 19-211 County Reimbursement: The political subdivision reimburses the county. If the recall petition is filed with the Secretary of State's office then the SOS pays for the cost - no reimbursement. 01:23:05
A.R.S. 19-212 Nomination Petition: The number of signatures is the same as running for other offices. It is a percentage of the people in the political party of the person. (A.R.S. 16-322). The circulator only needs to be qualified to register to vote (HB 2656). 01:23:40
A.R.S. 19-213 Ballot: On the ballot you are going to include the grounds for recall; the officer's justification statement; there is no party designation in a recall. 01:24:00
A.R.S. 19-216 Election Results: The winner is going to fill the remainder of the term. If the incumbent loses, he serves until completion of the canvass. The winner has 5 days to qualify meaning they must file an oath of office and bond if applicable. 01:24:15
A.R.S. 1-261 Withdrawal of petition signature: (this may not be included in the state booklet, but should be) To withdraw a signature for an initiative, referendum, or recall - this doesn't apply to candidates; there is not a way to do that after it has already been filed - "initiative or referendum" it must be filed by 5 p.m. on the date set by law for filing. Or, if there is no date set by law then it must be filed by 5 p.m. on the date the petition is filed. July 6 is the date statewide measures must be filed. "Recall" must be filed by 5 p.m. of the date submitted for verification. 01:24:50
How? They can go to the receiving officer's office and sign a statement to have their signature removed from a petition. Or they can mail in a signed, notarized statement to the same effect. If you could find the original circulator, you could have him draw a line through the signature and printed name (HB 1372 (2000)). 01:26:05
01:27:50 Q&A and Comments
Q (Leon Raper): What dates can you actually have elections.
A (Debbie Barber): ??????
A (Patsy Jenney Colon): ??????
Q (Jane Whitmire): I assume if someone comes in to take out a petition and register as an organization that you would inform them of the specific dates and timing. 01:32:10
A (Debbie Barber): Yes
Q (Bob Dinegar): What if you cross out someone elses name on a petition. Is there a penalty. 01:34:30
A (Jessica Funkhouser): Yes there is a criminal penalty and it has actually happened.
Comment (Leon Raper): About having to wait for possibly 2 years to have an election for an initiative or referendum on odd numbered years.
Comment (Sharon Keene-Wright): about a Prescott issue.
01:38:00 Marshall Whitmire makes closing statement.
01:40:21 Resume Backfire program