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Goldwater Urges Gov. Hobbs: Protect Arizonans’ Right to Keep Judiciary Accountable

May 16, 2023

Arizonans value our constitutional right to hold the judicial branch accountable by voting to keep judges in office or recall them, but existing law does not afford all voters that right. Now the Goldwater Institute is urging Gov. Katie Hobbs to sign HB 2757, sponsored by Arizona House Speaker Ben Toma. This measure ensures all voters have an equal say in the retention of all judges to the Arizona Court of Appeals.

Today, Arizonans periodically vote on whether to retain the judges who sit on their county’s Superior Courts—the county-level trial courts that handle thousands of legal disputes every year. They also vote on whether to retain the justices of the Arizona Supreme Court—the state’s highest appellate court deciding matters of statewide import.

But they cannot vote on the retention of all the judges on the Court of Appeals, who handle appeals from the county-level 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. That is not only unfair to all Arizona voters, who are bound by the decisions of these judges, it also raises serious constitutional questions.

Arizona’s Constitution requires that “all elections be free and equal.” As the courts have said, this means that each voter’s vote must be “equal in its influence” and that “each vote is given the same weight as every other ballot.” But existing law does not allow for “equal influence” from voters on the retention of judges on the Arizona Court of Appeals, limiting voters’ choices to only certain judges who sit on that important court. That’s why the Goldwater Institute sent a letter to Gov. Hobbs today, urging her to sign HB 2757—legislation that allows all voters to vote in retention elections for each judge on the Court of Appeals.

Arizonans have long cherished their right to hold the judiciary accountable via retention elections. 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.

Early in our state’s history, appeals from county-level Superior Courts went directly to the Arizona Supreme Court. But in the 1960s, with court dockets growing with the state’s booming population, Arizonans added an intermediate court of appeals. Arizona 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 a small number of cases, the Court of Appeals is the court of last resort for most Arizona litigants.

HB 2757 ensures that all voters in the state can make their voices heard when it comes to the retention of all judges to the Arizona Court of Appeals. It’s the proper constitutional course—and it protects all voters.

Read Goldwater’s letter to Gov. Hobbs here.

Scott Day Freeman is a Senior Attorney at the Goldwater Institute.



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