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.

Candidacy Of Oro Valley Election Spoilers Challenged In Court Today

The legitimacy of the candidacy of Douglas Burke and Joe Winfield for this November's Oro Valley recall election will be heard in Superior Court today.

The candidacies have been challenged by Oro Valley resident Don Bristow.  Bristow is the head of Accountable Government Now, a PAC that seeks to "complete the recall process."

We refer to these two candidates as "spoilers" because, in our opinion, their very late entry into the race guarantees that they can not win the election. They will merely draw votes from the challengers, thus helping the election of the Incumbents.

Bowers could have rejected petitions
Bristow has challenged every Burke petition because all of Burke's petitions are totally blank on the backside. The backside is where the verification is completed and signed by the petition circulator. This is a legal requirement.

Bristow is challenging some of Winfield's which were the correct double-sided form per instructions from the town. Some of these petitions lack complete verification. In addition, some of the signatures on the petition are not registered voters in Oro Valley. Some of the signatures were signed by people who had previously signed a Pat Straney petition.

Bristow is being represented by attorney Bill Risner. You can watch his remarks regarding the case courtesy of Audit-AZ.

According to Bristow: "If the petitions lacking the verification are rejected, Winfield will not have enough signatures to be on the ballot."

Why did Oro Valley Town Clerk Julie Bower not immediately reject these petitions? These petitions were clearly missing information require by statute.

"Yes." as Bristow wrote to us, "These petitions were accepted by the same Town Clerk, Julie Bowers, who rejected within seconds of receipt all voter referendum petitions on the El Conquistador Country Club last spring because of a wrong serial number." The Arizona courts affirmed her right to have done so.

So, one might wonder, why didn't Bowers reject the questionable Burke and Winfield petitions?

It may be due to the standard Bowers applied in reviewing the petitions. That standard is "substantial compliance." This is different from the standard of "strict compliance" that Bowers applied in the El Conquistador Country Club vote petitions.

What constitutes "substantial compliance" is a matter of judgment on the part of the clerk. It is likely that today Bowers and Pima County recorder, F. Ann Rodriguez, both named defendants will discuss their position.

The town asserts, in its press release that Bowers had  no authority to do anything but accept the petitions as submitted:

 "Unlike the referendum petition process, which the Town recently underwent in January 2015, there is no specific state statute granting the town clerk the authority to remove petition sheets in the recall candidate process; therefore, all candidate nomination petitions were accepted."(Source: Town Of Oro Valley press release)

We asked Joe Winfield his reaction to the court case. "It's what I love about America."

We will continue to follow developments as they progress.