A Glendale City Council candidate’s shot at elected office hinges on a court ruling regarding three votes in the Sept. 12 primary election that were disqualified because they were cast for an uncertified write-in candidate.
A lawsuit was filed Sept. 27 in Maricopa County Superior Court by five Glendale voters who allege the Glendale city attorney erred when he ruled the votes — which were disqualified in compliance with state law — should not be counted in the tally of all votes cast for the Ocotillo District City Council election. The suit argues that, though the individual votes should not be counted, the law still requires “votes for disqualified and ineligible persons be included in the tally to determine the result of the election…”
At a Sept. 26 meeting, the Glendale City Council adopted a resolution declaring Ocotillo District incumbent David Goulet the winner of the election and, in accordance with the city charter, declared there would be no run-off election because Mr. Goulet received a majority of all votes cast in the primary election.
However, the lawsuit argues that, had the three write-in votes been counted in the aggregate number of votes cast, Mr. Goulet would have received exactly half of the total number of votes. That, says Rick Flaaen, the plaintiff’s attorney in the suit, means there should be a run-off election in November between Mr. Goulet and second-place Bob Bohart.
“If counted, Goulet would have received exactly 50 percent — not the 50-percent-plus-one he needed,” Mr. Flaaen said.
Mr. Flaaen was also Mr. Bohart’s attorney earlier this year in an unsuccessful challenge to the nominating petitions Mr. Goulet filed to run for re-election. A third candidate, Gabe Cruz, was also on the ballot, though he had withdrawn his candidacy about a month before the election.
In the hands of the judge
Julie Frisoni, a spokeswoman for the city of Glendale, said city officials had been notified of the case and will file a response soon.
“After that, it will really be in the hands of the judge and the court to make a decision,” she said.
She said the city wouldn’t comment on the merits of the case, as litigation is pending.
The argument for counting the write-in ballots among the total votes cast, Mr. Flaaen says, is called the “American Rule,” and it has been upheld by various courts across the country. It states that votes for ineligible candidates are seen as a vote against the candidates on the ballot, not a wasted vote.
Although it is typically applied in cases where a candidate dies between the time the ballots are printed and the election is held, Mr. Flaaen said it applies equally as well to ineligible write-in candidates.
“Writing in a person rather than voting for one of the three candidates is not a wasted or thrown away vote. It is still a vote for the office, albeit for an ineligible candidate,” he wrote in an e-mail to Arizona Capitol Times. “It is a political statement similar to [voting] ‘none of the above.’ But, they are not void and should have been counted in determining the result of the election as to the other three candidates.”
The case law he cites was established in Arizona in the 1969 Tellez v. Superior Court case and reaffirmed in the 1991 Jennings v. Woods lawsuit.
The lawsuit also alleges that a mistake by the Maricopa County Recorder’s Office Elections Department disenfranchised an unknown number of Democrat voters in the Ocotillo District by not allowing them to vote in the City Council election.
Two of the plaintiffs, Robert and JoEllen Wenger, signed affidavits stating they were told by poll workers the City Council election was not on their ballots because it did not apply to Democrat voters. The Wengers claim the poll workers showed them the Ocotillo District election was on the Republican ballots but not on any Democrat ballots at the polling place.
Karen Osborne, Maricopa County’s elections director, said the precinct in question spans parts of two Glendale City Council districts, one which had an election and one that did not. In a standard primary precinct, she said, there are seven different ballots: one for party members of the three recognized parties and three for non-affiliated voters who request a Democrat, Republican or Libertarian ballot. The final type of ballot contains only local issues for voters who do not want to vote in the primary, but still wish to vote on city issues.
Ms. Osborne said this precinct had twice the typical number of ballots because it spanned two council districts. She said the ballots were color coded so poll workers had only to match up the colors on the precinct roster with the colors on the ballots. She added she has inspected the ballots from that precinct and is satisfied there were Democrat ballots from the council district in question that contained the candidates’ names and were properly voted.
Arizona Capitol Reports Editor Barry Gartell contributed to this article.