Upholding Arizonans’ Right to Hold the Judiciary Accountable

Case Overview

The Arizona Constitution requires that all elections—including judicial retention elections—be “free and equal.” This means that each voter gets an equal say in the outcome of elections for public officials with jurisdiction over them.

But not everyone gets to vote in retention elections for Court of Appeals judges, even though those judges have statewide jurisdiction. Currently, only voters residing in the same geographic area as a particular judge may vote in that judge’s retention election. Voters living in the other parts of the state do not get to vote in those elections even if they have sat before that judge in court or have been otherwise affected by a judge’s decision. Such unequal treatment violates the Free and Equal Elections Clause and another constitutional provision guaranteeing that privileges such as the right to vote “equally belong to all citizens.”

That is why the Goldwater Institute, through its Scharf-Norton Center for Constitutional Litigation, filed a Special Action Petition on behalf of four disenfranchised Arizona voters, asking the Arizona Supreme Court to step in and order that all retention elections for Court of Appeals judges comply with the Constitution and be held on a statewide basis.

Case Logistics

The Goldwater Institute represents four plaintiffs, all Arizona voters who have been wrongfully denied the right to vote in retention elections for Court of Appeals judges residing in other areas of the state.

Bonnie Knight resides in Yuma County and may only vote on the retention of judges residing in Division 1, excluding Maricopa County. Deborah McEwen resides in Santa Cruz County and may only vote on the retention of judges residing in Division 2, excluding Pima County. Sarah Ramsey resides in Pima County and may only vote on the retention of Court of Appeals judges who also reside in Pima County. Likewise, Leslie White, a resident of Maricopa County, may not vote on the retention of Court of Appeals judges who reside outside Maricopa County.

Each of these plaintiffs should be able to vote on the retention of all Court of Appeals judges statewide because Court of Appeals judges issue statewide decisions.

Secretary of State Adrian Fontes is sued in his official capacity because under the state constitution the Secretary of State’s office receives judicial retention candidate declarations and certifies to the county boards of supervisors which candidates’ names shall appear on the ballot.

The case was filed directly with the Arizona Supreme Court on August 29, 2023.

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Andrew W. Gould is Special Counsel at the Goldwater Institute in Knight v. Fontes. He also serves as Senior Counsel at the First Liberty Institute, a nonprofit First Amendment litigation firm.

Gould served as a Justice on the Arizona Supreme Court from 2016 until March 2021. Prior to his service on the Supreme Court, he was a Judge on Division One of the Arizona Court of Appeals from 2012 to 2016 and a Judge of the Superior Court in Yuma County from 2001 to 2011.

Gould received his J.D. from Northwestern University School of Law in 1990. In 1994, he became a Deputy County Attorney, prosecuting major criminal cases for Yuma and Maricopa Counties. He served as Chief Civil Deputy for the Yuma County Attorney’s Office from 1999 to 2001. Justice Gould has previously served on the Arizona Supreme Court Commission on Technology and as the President of the Arizona Judges’ Association. He has also taught at the Judicial Conference and New Judge Orientations and has served as an adjunct professor at Arizona State University Law School.

Case Documents

Backgrounder

Cert Compliance

Certificate of Service

Petition for Special Action

Appendix

Legal Team

Jon Riches

Jon Riches is the Vice President for Litigation for the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation and General Counsel for the Institute. He litigates in federal and state trial and appellate courts in the areas of economic liberty, regulatory reform, free speech, taxpayer protections, public labor issues, government transparency, and school choice, among others.… Read more...

Scott Day Freeman

Scott Day Freeman is a Senior Attorney at the Goldwater Institute. He has more than 28 years of experience litigating complex commercial and tort defense cases at large international and regional law firms. Scott is a former President of the Arizona Association of Defense Counsel and currently serves as the Pacific Regional Director of DRI,… Read more...

Parker Jackson

Parker Jackson is a Staff Attorney at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation, where he focuses on taxpayer protection, free speech, associational rights, government transparency, education, and election-related issues. He graduated from the Sandra Day O’Connor College of Law at Arizona State University and is admitted to practice law in Arizona. During law… Read more...