Oro Valley Candidate Challenge Now Rests With The Court

The legal challenge to the candidacy of two Oro Valley residents is now in the hands of Arizona superior court judge Gus Aragon. Aragon is the same judge who ruled that the voter petitions for a referendum on the purchase of the El Conquistador Country Club failed to meet strict compliance standards. The petitions had the wrong filing numbers.

Wednesday the plaintiff, Don Bristow, and the four defendants presented their case. Yesterday, they presented their closing arguments. The judge will likely issue a ruling shortly as some ballots have already been mailed.

The facts of the case are not in dispute
Candidate Doug Burke agrees that he did not include the name and signature of the circulator on the back of any petitions he submitted. He stated that he did not think that this requirement applied to him on the basis that he collected all the signatures himself.

Candidate Joe Winfield agrees that a few of his forms did not include the circulator signature on the back.  "The crux of the matter for me personally is that the plaintiff has alleged that the petitions I submitted do not comply. I do not agree with that."  Winfield  discussed sections of the Oro Valley Candidate Handbook to support his conclusion.

"I believe the intent is to raise doubts in voter's minds that somehow I have tried to game the system" he stated in his closing. "I am a resident of Arizona. I am an registered voter. This [requirement of signing all the petitions as circulator on the back] doesn't apply to me."

Bristow's attorney, Bill Risner, plead that the state statute requires that the certification be present on each and every petition; that this is a substantial requirement; and that the judge should reject the petitions.

Watch Risner's rebuttal closing at right. Watch the closing argument of all parties here. Videos are courtesy of auditaz.

On the surface this sounds like a simple decision. The judge needs to decide if there is a statute that applies to a recall election; and if so then excluding the certification is a fatal flaw.

But it is not a simple decision.

The Pima County defense: The court can not interrupt an election once it has started
Pima County's defense is that the Bristow challenge has no standing because the county printed and mailed a few ballots. Four ballots have been returned.

The county argues that it is they who determine the end date of a court challenge regardless of what a statute dictates. If this is indeed so, then the county can manipulate the election process. Perhaps they rushed to print and mail ballots 7 weeks before the election to prevent this court challenge.

The county points to a court case where the judge determined that a challenge can not be considered after voting has started. It is up to Judge Aragon to decide if this case has merit in this situation.

Attorney Risner has a different perspective. The end date for a challenge is mandated by law. Bristow filed his case several days earlier than required.

Oro Valley Attorney Sidles: Clerk Bower is the "...definition of professionalism"
Oro Valley town attorney Tobin Sidles argued that town clerk Julie Bower should not be a defendant in this case. According to Sidles: Bower’s job was to "count the number of signatures, accept them, and wait for a Title XV1 challenge." She sought counsel from him and from the state elections director. Referring to Bower's actions: "This is the definition of professionalism."

Tough decision ahead for Judge Aragon
First, Judge Aragon has to decide if there is a valid Arizona statute relating to a recall election petitions, If so, then he will have to determined if the lack of certification makes the petitions substantially invalid. This is unlike the strict compliance standard that he applied in the El Conquistador Country Club voter referendum petition rejection.

Then, assuming that he believes that the lack of certification is substantial, he will have to rule as to whether Bristow filed his appeal after, what the county claims, was the date due.