Arizona's judicial elections system is unfair to voters, lawsuit says

The current ballot method of retaining or rejecting judges on the Arizona Court of Appeals is unconstitutional and should be struck down, the Goldwater Institute says in a new lawsuit.

The organization, which lobbies and litigates against government regulation, contends the current system illegally disenfranchises some voters. In that system, people from only certain counties get to vote on certain appellate judges.

The Goldwater Institute is asking the Arizona Supreme Court to void the process ahead of the 2024 election, in order to allow all voters to decide on all judges.

“It comes down to a really simple principle: Every Arizonan should have the right to vote on judges that affect them,’’ institute attorney Jonathan Riches told Capitol Media Services. “And the current system doesn’t allow that.’’

Riches noted that decisions of both divisions of the Court of Appeals are legally binding on the entire state, regardless of where they’re issued.

The lawsuit named Secretary of State Adrian Fontes, a Democrat, as the defendant, mainly because he is the one who administers all statewide elections, including those for appellate-level judges.

But in a brief order late Wednesday, Justice Ann Scott Timmer dismissed the case, telling the Goldwater Institute to refile the lawsuit, this time including “all persons who have or claim any interest that would be affected by the relief sought.’’

There was no immediate response from Riches.

A spokesman for Fontes had no immediate answer to whether the secretary will actively oppose the Goldwater Institute’s effort or instead take a neutral role and tell the Supreme Court justices he will follow whatever they rule.

Retention system

Strictly speaking, Arizona does not elect appellate judges.

Under a system approved by voters in 1974, they are chosen by the governor, who must select from a list submitted by a screening panel.

But sitting judges are required to stand for reelection on a retain-reject basis every four years. If a judge is turned out of office by voters, the selection process starts over.

Governors are required to select appellate judges based on county of residence. Riches said the Goldwater Institute is not challenging that, which he said promotes diversity.

What is a problem, he said, is the law says the list of who can vote to retain or reject appellate judges is based on the residence of the voter.

“Voters cannot vote on the retention of judges who reside outside their geographic area,’’ the lawsuit says.

This isn’t the first attempt to nullify the system.

On a party-line vote earlier this year, the Republican-controlled Legislature approved a proposal by House Speaker Ben Toma, R-Peoria, to require all Court of Appeals judges to stand for retention on a statewide basis. No one testified against it.

Debate over equal protection of voters

But Democratic Gov. Katie Hobbs vetoed the proposal, saying the proposed cure is worse than the current situation.

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“Allowing voters statewide to vote on whether to retain all of Court of Appeals judges regardless of the judge’s division assignment, while retaining the division structure, would unfairly dilute the votes of those Arizonans most directly impacted by each division’s judges,’’ Hobbs wrote.

Riches contends that ignores the reality of how the system works.

“There is no guarantee that any judge they vote for will sit on any given case,’’ the lawsuit states.

Cases can be and are transferred between divisions. So, for example, the review of a decision of a Maricopa County Superior Court judge in a dispute between Maricopa County residents can be handled by appellate judges who aren’t from Maricopa County.

That’s because of the somewhat complex two-division system that now exists.

For instance, someone who lives in Pima County, in Division II of the Court of Appeals, can vote to retain or reject only appellate judges who were selected by the governor from that county. Residents of the other counties in Division II — Pinal, Cochise, Santa Cruz, Greenlee, Graham and Gila counties — can cast ballots only for judges who were picked from among those six counties.

The same situation exists in Division I, with Maricopa County residents entitled to vote on the future of appellate judges only from their county, and residents of Yuma, La Paz, Mohave, Coconino, Yavapai, Navajo or Apache counties entitled to weigh in only on appellate judges from those seven counties.

All that means that litigants “will frequently be subject to appellate decisions where they never voted for a single judge on the panel,’’ Riches said.

On a practical level, the Goldwater Institute says that about 60% of Arizona voters get to cast a ballot in retention elections for appellate court judges residing in the state’s largest county. But only about 10% of registered voters can participate in retention elections for Court of Appeals judges in Pinal, Cochise, Santa Cruz, Greenlee, Graham or Gila counties.

The lawsuit says that violates state constitutional provisions requiring equal protection of all voters.

Former appellate judge backs lawsuit

Riches noted, by contrast, voters in the entire state get to decide on retaining or rejecting the members of the Arizona Supreme Court, regardless of the residence of the justices.

He said that doesn’t fix the problem, however, as most cases make it no farther than the Court of Appeals.

Unlike the appellate court, the Supreme Court does not have to take every case that comes to it. And a decision not to review an appellate court ruling leaves the ruling as the binding precedent for the whole state.

The lawsuit is being backed by the legal help of Republican Andrew Gould, who was a Yuma County Superior Court judge before being tapped for the appellate court in 2011 by Republican Gov. Jan Brewer.

He became a justice of the Supreme Court in 2016 after the Republican-controlled Legislature expanded the size of the high court from five to seven, giving GOP Gov. Doug Ducey two new appointments.

Now he is listed as “special counsel’’ on this lawsuit.

In a prepared statement, Gould called the current system “arbitrary.’’

“If a judge’s decision will affect the whole state, it shouldn’t matter where in the state he or she lives,’’ he said. “The current system is unfair to the millions of Arizona voters who are bound by the decisions of the judges on the Arizona Court of Appeals, and it raises serious constitutional questions.’’