The Goldwater Institute has filed a special action petition seeking to allow all Arizona voters to weigh in on retention for Arizona Court of Appeals judges, not just those in their jurisdiction, and alleges the current residency-based retention system sows voter disenfranchisement and violates the Arizona Constitution.
Led by former Arizona Supreme Court Justice Andrew Gould as special counsel, attorneys for The Goldwater Institute filed on behalf of four voters residing in Yuma, Santa Cruz, Pima and Maricopa counties.
The voters allege “disenfranchisement” as they are barred from voting in particular judicial retention elections based on their county of residency, despite decisions from the Arizona Court of Appeals impacting the entire state.
Gould, who underwent retention elections as both a Court of Appeals judge and an Arizona Supreme Court justice, told The Arizona Capitol Times the current system makes judicial representation “luck of the draw.”
The four voters and the Goldwater Institute are asking the state high court to order Secretary of State Adrian Fontes to include the names of all Arizona Court of Appeals judges on the statewide ballot in 2024 and beyond.
Appellate judges are not elected in Arizona. Rather judges are nominated by the Arizona Commission on Appellate Court Appointments, appointed by the governor, and then are periodically made to stand for a retention vote.
Statute holds the state Court of Appeals “constitutes a single court,” but the court is split into two divisions.
Division One has 19 judges and encompasses Maricopa, Yuma, La Paz, Mohave, Coconino, Yavapai, Navajo and Apache counties, while Division Two has nine judges and consists of Pima, Pinal, Cochise, Santa Cruz, Greenlee, Graham and Gila counties.
In Division One, 10 judges hail from Maricopa County, five from the remaining counties and five “at large” judges from any given county in the division.
In Division Two, there’s a similar split with four judges hailing from Pima County, two from the remaining counties and three at-large judges.
Judges stand for retention based on their residency, which is divided into four areas: Maricopa County, the remaining counties in Division One, Pima County and the remaining counties in Division Two.
Rulings from either division of the Court of Appeals apply statewide. And Gould argues in the filing that, “voters under Arizona’s current retention election scheme run the risk of being completely disenfranchised because there is no guarantee that any judge they vote for will sit on any given case.”
Gould notes the statute governing the state Court of Appeals holds, “[e]ach judge of the court of appeals may participate in matters pending before a different division,” and cites further legislative moves toward a more unified appellate court system.
Namely, the filing cites a 2022 law which made it so cases “may be transferred between divisions in order to equalize caseloads and for the best use of judicial resources.”
Gould said, “They regularly transfer the cases. They have a formula when they transfer the cases. So, it’s not an option, or an occasional transfer that occurs. It’s part of their regular practice and procedure.”
Gould contends continuing to split retention votes based on residency violates the state constitutional clauses requiring elections be “free and equal,” and “[n]o law shall be enacted granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which, upon the same terms, shall not equally belong to all citizens or corporations.”
A spokesperson for Fontes did not respond to an inquiry on whether the Secretary of State would be defending the current retention system.
But there is some opposition to the prospect of a statewide retention election. Last session, the legislature passed H2757 (court of appeals; retention election), primarily on party lines. The legislation would have accomplished the same feat sought in the special action.
But Gov. Katie Hobbs vetoed the bill and wrote in her veto letter that the change would, “unfairly dilute the votes of those Arizonans most directly impacted by Division’s judges.”
She “urged the Legislature next session to take a more holistic look at the organization of the Court of Appeals, including its retention election rules,” but noted the bill “standing alone, is not the right approach.”
Gould said he was not sure what Hobbs meant by “dilute the vote.”
“To me diluting the vote would be setting up districts where there was not full statewide representation of all voters voting for retention,” Gould said.
The Arizona Supreme Court is now tasked with deciding whether to accept the case for review.