Griffith v. Baca

SUPREME COURT OF ARIZONA
In Division

GARY GRIFFITH, ) Arizona Supreme Court
) No. CV-10-0197-AP/EL
Plaintiff/Appellant, )
) Graham County
v. ) Superior Court
) No. CV2010-00136
R. RENE BACA, an individual, )
Real Party in Interest; JUDY )
DICKERSON, in her official )
capacity as Graham County ) O P I N I O N
Elections Officer; GRAHAM COUNTY )
BOARD OF SUPERVISORS; WENDY JOHN, )
in her official capacity as )
Graham County Recorder, )
)
Defendants/Appellees. )
)
__________________________________)

Appeal from the Superior Court in Graham County
The Honorable Wallace R. Hoggatt, Judge

AFFIRMED
________________________________________________________________

Gary Griffith Safford
In Propria Persona

GAMMAGE & BURNHAM PLC Phoenix
By Lisa T. Hauser
Carolyn V. Williams
Attorneys for R. Rene Baca
________________________________________________________________

B A L E S, Justice

¶1 Gary Griffith challenged the qualifications of R. Rene

Baca as a candidate for justice of the peace, the superior court

rejected the challenge, and Griffith appealed. We issued an

order affirming the judgment of the superior court; this opinion

explains our reasoning.

I.

¶2 Griffith is justice of the peace in Graham County

Justice Precinct No. 1 (JP1). He challenged Baca’s nominating

petitions pursuant to Arizona Revised Statutes (“A.R.S.”)

section 16-351 (2006) arguing that Baca was not a qualified

elector or resident in JP1 when he filed his nomination papers.

¶3 After an evidentiary hearing, the superior court made

the following factual findings, which are not disputed here.

Before May 4, 2010, Baca lived with his wife and two children in

a house (the “Pheasant Lane house”) in Thatcher. This house is

in Graham County Justice Precinct No. 2 (JP2). On April 28,

2010, Baca was registered to vote at the Pheasant Lane house in

Graham County election precinct 18. That day he submitted an

early ballot for the May 18, 2010 statewide special election

regarding Arizona’s sales tax. (Baca’s early ballot was later

processed and counted in precinct 18.) On April 28, 2010, Baca

also decided to run for justice of the peace in JP1.

¶4 On May 3, 2010, Baca went to the Graham County

Recorder’s Office and submitted a new voter registration form to

change his party affiliation to “independent.” Baca listed his

address as the Pheasant Lane house. The next day, when someone

told him that he lived in JP2, Baca said he would “just move,

then.” Baca had decided months earlier to move closer to
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Safford and had been trying to sell the Pheasant Lane house. On

May 4 or 5, Baca returned to the Graham County Recorder’s

Office. Baca told the Recorder that he listed the “wrong

address” on the form he filled out on May 3. The Recorder

retrieved the form and instructed Baca to cross out the Pheasant

Lane address and insert his new address. Baca listed as his new

address the home of his mother and stepfather in Safford (the

“Relation Street house”). The Relation Street house is in JP1.

Baca did not re-sign the voter form.

¶5 In early May 2010, Baca notified the U.S. Postal

Service, his bank and credit card companies, Graham County, and

others that his address had changed to the Relation Street

house. The superior court found that Baca and his family left

the Pheasant Street house on May 4 and lived at the Relation

Street house until May 15, when they moved to another house,

also in JP1, occupied by the parents of Baca’s wife. At the

time of the trial, Baca and his family were still living with

his in-laws.

¶6 On May 5, Baca filed a political committee statement

of organization identifying the Relation Street house as his

residence. On May 14, he filed his nomination papers and an

initial set of nominating petitions. Ultimately, Baca submitted

petitions with 145 valid signatures, significantly more than the

53 signatures required to qualify as a candidate. The petitions
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identified the Relation Street house as his residence.

¶7 The superior court found that Baca resided at the

Relation Street house from May 4 to May 15, and thereafter

resided with his in-laws at another house within JP1. The trial

judge also rejected Griffith’s arguments that Baca was not an

elector in JP1 because (1) he had not validly changed his

address on the voter registration form to reregister in JP1, or

(2) after Baca submitted his early ballot in JP2 on April 28, he

could not reregister in JP1 until after May 18, 2010 – the date

of the special election.

II.

¶8 Griffith makes two legal arguments before this Court.

He argues that Baca could not change his voter registration to a

different precinct merely by striking out the former address and

interlining a new one without re-signing the form under oath.

Alternatively, he argues that Baca could not be registered

simultaneously in JP2 for purposes of casting his early ballot

for the May 18 special election and in JP1 for purposes of

submitting his nomination papers on May 14. Griffith does not

challenge the superior court’s conclusion that Baca was a

resident of JP1 as of May 4.

¶9 The key statute is A.R.S. § 16-311(A) (2006), which

provides that “[a] candidate for public office shall be a

qualified elector at the time of filing and shall reside in the
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county, district or precinct which the person proposes to

represent.” Cf. Ariz. Const. art. 7, § 15 (providing that a

candidate “shall be a qualified elector of the political

division or municipality in which such person shall be

elected”). A “qualified elector” is a person “qualified to

register to vote pursuant to § 16-101 and . . . properly

registered to vote.” A.R.S. § 16-121(A) (2006).

¶10 In their briefing before this Court, Griffith and Baca

interpret § 16-311(A) to require candidates like Baca to be

registered to vote in the relevant precinct (and therefore a

resident of that precinct) when they file nomination papers. We

will assume for purposes of this case that this interpretation

is correct, although the language of § 16-311(A) arguably could

support a different reading. Cf. A.R.S. § 11-402 (2001)

(providing that “[a] person shall not be eligible for a county

office . . . unless he is, at the time of his election or

appointment . . . an elector of the county or precinct in which

the duties of the office are to be exercised”); Nicol v.

Superior Court, 106 Ariz. 208, 473 P.2d 455 (1970) (construing §

11-402 to require residency within precinct at time of election

for justice of the peace candidates).

¶11 We are not persuaded by Griffith’s argument that Baca

did not validly change his registration because he did not

submit a new voter registration form with the Relation Street
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address or re-sign the previous form. Under A.R.S. § 16-135

(2006), an elector who moves within the same county may change

his registration address by: (1) reregistering at the new

address; (2) voting a provisional ballot on election day at the

appropriate polling place by presenting identification showing

the new address and affirming the new address in writing; or (3)

correcting the address on a written request for an early ballot

that includes the elector’s new address, affirmation, and

signature.

¶12 Baca reregistered at the Relation Street address when,

consistent with the instructions of the Recorder, he corrected

his address on the previous form and resubmitted it to her,

still bearing his signature and acknowledgement that false

registration is a class 6 felony. Because Baca corrected his

signed form in the Recorder’s presence and returned it directly

to her, we agree with the superior court that he reaffirmed his

signature on the form with the new address. Although it might

have been preferable for Baca to have completed a new

registration form, the signature requirements of A.R.S. §§ 16-

121.01 (2006) and 16-152 (2006) ensure that the registrant is

correctly identified and recognizes the consequences of

submitting false information. Those purposes were met here.

¶13 We also are not persuaded by Griffith’s argument that

Baca could not reregister in JP1 before the May 18 special
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election once he submitted an early ballot in JP2. Arizona

statutes do not preclude voters from changing their registration

pending an election in which they submit an early ballot.

Instead, if an elector requests an early ballot and moves to a

different precinct before election day, the elector may still

reregister to reflect the change of address. In that event, the

statutes preclude the elector from casting two votes in the same

election by providing that any provisional ballot in the new

precinct will not be counted if the elector has already voted.

See A.R.S. § 16-135(D). An elector can be registered to vote in

a precinct without necessarily being eligible to cast a vote

there in a particular election. See A.R.S. § 16-120 (2006)

(generally requiring elector to be registered within a voting

district twenty-nine days preceding an election in order to be

eligible to vote). Thus, Baca’s early vote in JP2 for the May

18 statewide election did not prevent him from reregistering on

May 4 or 5 in JP1; it merely prevented him from voting again in

the same election.

III.

¶14 For the foregoing reasons, we affirm the judgment of

the superior court.

_____________________________________
W. Scott Bales, Justice

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CONCURRING:

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

_____________________________________
A. John Pelander, Justice

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