A long-fought legal battle to see state Court of Appeals judges stand for retention elections statewide, as opposed to by county of residence, is now under consideration by the state high court.

Attempts to alter the judicial retention election system for intermediate appellate judges started in the Legislature, and with insufficient success, soldiered through the courts on constitutionality grounds.

A final decision, now pending in the Arizona Supreme Court, could either add 28 judges to the statewide ballot in 2026, or send the Goldwater Institute, the chief advocate for the policy change, back to the Legislature to try again.

As it stands now, Court of Appeals judges run for election based on their county of residence.

Candidates hail from two distinct divisions, each representing a region of Arizona as a whole.

Division One comprises Maricopa, Yuma, La Paz, Mohave, Coconino, Yavapai, Navajo and Apache counties. A majority of the Division One appellate judges, 10 of 19 total, hail from Maricopa County and are elected by voters of Maricopa County.

Five are required to be from and be retained by voters in the remaining counties, and the remaining four judges can come from any county in Division One.

A similar system is set up in Division Two, consisting of Pima, Pinal, Cochise, Santa Cruz, Greenlee, Graham and Gila counties. Four of the nine judges come from Pima, two from the remaining counties and three judges can come from any county, with voting again based on the judge’s county of residency.

Attorneys for the Goldwater Institute, arguing on behalf of four voters, insist the state law establishing the division system runs counter to the state Constitution: “first, because of silence on the intermediate appellate court’s electorate in articles setting up elections, and second, because of a potential uneven distribution of votes among the different voting divisions, despite the Court of Appeals maintaining statewide jurisdiction.”

In front of the justices on April 8, Andrew Gould, attorney for the Goldwater Institute, argued that the uneven distribution demanded a shift to statewide retention elections for appellate judges rather than elections based on county of residence.

Gould started by pointing out that the state Constitution does not explicitly set an electorate for the Court of Appeals. He then contrasted this with the Superior Court judges, whose constituents are drawn by county, and legislators, who are delineated by district.

Justice William Montgomery noted the Legislature maintains the authority to create the jurisdiction, powers, duties and composition of any intermediate appellate court.

Gould noted, though, that the Arizona Court of Appeals is looped in with the Arizona Supreme Court in a provision covering retention elections, with an instruction for appellate judges to file retention declarations with the secretary of state. He said the Court of Appeals’ inclusion necessarily means the judges should stand for statewide election per the Constitution, which would override legislative authority.

But Montgomery called that an inference.

“I don’t see that as something that’s explicitly written that then becomes a fulcrum point for our interpretation,” Montgomery said.

Still, Gould insisted the Legislature’s statute to divvy up appellate judges by county went beyond the Constitution by dividing a statewide office and “worse yet,” creating uneven districts.

Chief Justice Ann Timmer said Gould “raised very good policy points.”

“But that’s what they strike me as, policy points. How does (the statute) violate the Arizona Constitution? What’s the violation?” Timmer asked.

Gould said there is nothing in the Arizona Constitution that supports dividing up Court of Appeals judges into districts, “and the fact that the Constitution knows when to include those terms and does so for superior courts and legislative districts is important.”

In a briefing before the oral argument, Gould and attorneys for the Goldwater Institute argued that county-based elections violate the Free and Equal Elections Clause and the Equal Privileges and Immunities Clause by granting unequal weight to each vote.

Meanwhile, the state maintains the judicial election system for the Court of Appeals was always intended to run along geographic lines.

“The system is not based on the fictional principle that the scope of judicial authority or the reach of a court’s jurisdiction defines its electorate,” Emma Mark, senior litigation counsel for the Solicitor General’s Office, said. “It was intended to give every voter a say while still balancing the diverse interests of Arizona’s urban and rural populations.”

Montgomery noted there was an “allure to the basic logic that if a judge is going to issue a ruling that affects me, I ought to have some oversight to some degree as a voter,” and asked whether the state thought the Legislature should be at all limited in determining the jurisdiction of the Court of Appeals.

Mark said the Legislature would be limited if it acted in a way that was arbitrary or capricious. She noted that the Constitution contemplates that judges will be appointed from certain geographic areas and the Legislature creates parity by putting retention elections on the same system as appointments.

“If we have a statewide retention election but maintain this geographically based merit selection process, I don’t think it’s difficult to envision a scenario where Maricopa County voters consistently overwhelm and outnumber the voters from rural counties,” Mark said. “That doesn’t really seem fair either. So this system is a way to give everybody a say in the judges that come from their geographic area.”

Mark then called on the state Supreme Court to uphold the lower court’s ruling. In July, Judge Frank Moskowitz found no violation of the Free and Equal Elections Clause nor the Equal Privileges and Immunities Clause.

His ruling held the current retention election system constitutional as it treats all similarly situated voters equally. He found the plaintiffs failed to establish a cogent argument that the court’s electorate should hinge on its statewide jurisdiction, noting that the Superior Court judges also maintain statewide jurisdiction but are voted on by the county.

The justices took the matter under advisement.

Jon Riches, vice president of litigation at the Goldwater Institute, said they were hopeful the court would strike down the geography-based retention scheme.

If the court decides to rule against the Goldwater Institute, the attempt to shift the retention scheme could be followed up in the Legislature, though a bill to achieve the same end was vetoed by Gov. Katie Hobbs in 2023.

House Bill 2757, sponsored by Rep. Ben Toma, R-Peoria, passed along party lines. But in her veto letter, Hobbs found it would “unfairly dilute the votes of those Arizonans most directly impacted by each Division’s judges.”

Riches said, “We would certainly welcome the Legislature to continue its work toward a system that is both constitutional and just for voters, and encourage the governor to recognize that the current system is neither.”