Goldwater Challenges Disenfranchisement of Millions of Arizonans

Disenfranchisement.

That’s what happens when citizens are unfairly denied the right to vote for or against public officials who make decisions that affect their lives. And it’s precisely what’s happening to millions of Arizonans under an unconstitutional system that affords only a tiny subset of voters the right to vote in retention elections for judges on the Arizona Court of Appeals, whose decisions affect all Arizonans.

Now the Goldwater Institute is filing suit to uphold Arizonans’ right to hold the judiciary accountable. Goldwater’s special action petition, filed with the Arizona Supreme Court this week on behalf of four voters, urges the high court to strike down the current retention election system for Court of Appeals judges and ensure all voters have an equal say.

Today, all Arizonans periodically vote on whether to retain each of the justices of the Arizona Supreme Court, the highest court in the state. But they cannot vote on the retention of all the judges on the Court of Appeals, the state’s intermediate appellate court, which handles appeals from the trial courts and whose decisions set statewide legal precedent. Instead, a voter’s residency limits their choices to only those Court of Appeals judges who resided in a corresponding geographic area of the state when appointed. Court of Appeals decisions bind all Arizonans in the same way that decisions of the Arizona Supreme Court do, unless and until the state Supreme Court overturns those decisions. But since the Arizona Supreme Court only reviews approximately 1 percent of all appellate cases, the Court of Appeals is the court of last resort for most Arizona litigants.

In practice, this unjust system means that approximately 60 percent of Arizona voters get to vote in retention elections for Court of Appeals judges residing in Maricopa County (the state’s largest county by far), but only about 10 percent of voters can participate in retention elections for Court of Appeals judges residing in the far smaller Pinal, Cochise, Santa Cruz, Greenlee, Graham, or Gila counties.

It’s an arbitrary rule. “If a judge’s decision will affect the whole state, it shouldn’t matter where in the state he or she lives,” says former Arizona Supreme Court Justice Andrew Gould, who serves as special counsel in this matter. “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.”

The Arizona Constitution requires that “[a]ll elections shall be free and equal,” which courts have said means that the vote of each voter must be “equal in its influence.” Ballots must carry the same weight, and voters may not be treated unequally. Moreover, the state constitution says that privileges such as the right to vote “equally belong to all citizens.”

Arizonans have long cherished their right to hold the judiciary accountable. When Arizona sought to become a state, our proposed state constitution included a provision guaranteeing Arizonans the ability to vote to recall judges. But President William Howard Taft opposed the provision—and he objected to Arizona’s admission into the union over it. So Arizonans removed the offending provision to gain statehood, only for the state’s first legislature to put a constitutional amendment restoring the provision before the voters in 1912. In independent style, Arizonans overwhelmingly approved the amendment.

The Goldwater Institute will always defend voters’ right to have an equal say in holding their government accountable. It’s the proper constitutional course—and it protects all voters.

You can read our special action petition here.

Click here to read more about Goldwater’s work to protect Arizonans’ right to hold the judiciary accountable.