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Graham v. Tamburri

Supreme Court of Arizona

August 26, 2016

Robert Graham, Plaintiff/Appellee,
v.
Frank Tamburri, an individual, Defendant/Appellant, Michelle Reagan, in her official capacity as the Secretary of the State of Arizona, Lenora Y. Fulton, in her official capacity as the Apache County Recorder; Apache County Board of Supervisors, in their official capacity; Christine Rhodes, in her official capacity as Cochise County Recorder; Cochise County Board of Supervisors, in their official capacity; Patty Hansen, in her official capacity as Coconino County Recorder, Coconino County Board of Supervisors, in their official capacity; Sadie Jo Bingham, in her official capacity as Gila County Recorder, Gila County Board of Supervisors, in their official capacity; Wendy John, in her official capacity as Graham County Recorder; Graham County Board of Supervisors, in their official capacity; Berta Manuz, in her official capacity as Greenlee County Recorder, Greenlee County Board of Supervisors, in their official capacity; Shelly Baker, in her official capacity as La Paz County Recorder; La Paz County Board of Supervisors, in their official capacity; Helen Purcell, in her official capacity as Maricopa County Recorder; Maricopa County Board of Supervisors, in their official capacity; Robert Ballard, in his official capacity as the Mohave County Recorder; Mohave County Board of Supervisors, in their official capacity; Laura V. Sanchez, in her official capacity as Navajo County Recorder; Navajo County Board of Supervisors, in their official capacity; F. Ann Rodriguez, in her official capacity as the Pima County Recorder; Pima County Board of Supervisors, in their official capacity; Virginia Ross, in her official capacity as the Pinal County Recorder; Pinal County Board of Supervisors, in their official capacity; Suzanne Sainz, in her official capacity as the Santa Cruz County Recorder; Santa Cruz County Board of Supervisors, in their official capacity; Leslie M. Hoffman, in her official capacity as the Yavapai County Recorder; Yavapai County Board of Supervisors, in their official capacity; Robyn Stallworth Pouquette, in her official capacity as the Yuma County Recorder; and the Yuma County Board of Supervisors, in their official capacity, Real Parties in Interest,

         Appeal from the Superior Court in Maricopa County The Honorable John R. Hannah, Jr., Judge No. CV2016-008547

          Kory Langhofer, Thomas Basile, Statecraft PLLC, Phoenix, Attorneys for Robert Graham

          Israel G. Torres, James E. Barton II, Saman J. Golestan, Torres Law Group, PLLC, Tempe, Attorneys for Frank Tamburri

          Mark Brnovich, Arizona Attorney General, James Driscoll-MacEachron, Assistant Attorney General, Phoenix, Attorneys for Secretary of State Michelle Reagan

          CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE CHIEF JUSTICE PELANDER and JUSTICES BRUTINEL, TIMMER, and BOLICK joined.

          OPINION

          BALES CHIEF JUSTICE.

         ¶1 Frank Tamburri timely appealed the trial court's order excluding his name from the Libertarian primary election ballot for the office of United States Senator. This opinion explains the reasons for our order entered on July 1, 2016, affirming the trial court's judgment.

         I.

         ¶2 Under Arizona law, candidates of "recognized" political parties seeking election as a United States Senator must first be nominated by receiving the most votes in their party's primary election. See A.R.S. §§ 16-213; 16-201; 16-301-302; 16-645(A). The Libertarian Party is a recognized political party. To be included on the primary election ballot, a candidate must, among other things, file a nomination petition containing signatures from qualified signers. Id. § 16-314(A), (B).

         ¶3 Before 2015, a senatorial candidate from a recognized party needed to collect signatures from at least 0.5 percent of the party's registered voters in the state. Id., former § 16-322 (amended 2015). In 2014, Arizona had 3, 235, 963 registered voters, 26, 589 of whom were members of the Libertarian Party. Ariz. Sec'y of State, State of Arizona Registration Report (2014), http://apps.azsos.gov/election/voterreg/2014-11-04.pdf. Thus, if there had there been a senatorial election in 2014, a Libertarian candidate would have needed 133 signatures from registered Libertarians to qualify for the primary election ballot.

         ¶4 In 2015, however, the legislature approved H.B. 2608 and thereby amended § 16-322 to increase the base from which signatures for senatorial candidates from any party can be acquired. See 2015 Ariz. Sess. Laws, ch. 293, § 3 (1st Reg. Sess.). Rather than limiting the requisite signatures to only the pool of voters registered with the candidate's party, § 16-322 now requires candidates to obtain signatures totaling at least 0.25 percent of the number of qualified signers. A "qualified signer" is a voter who is (1) a registered member of the party from which the candidate is seeking nomination; (2) a registered member of a political party not entitled to continued representation pursuant to A.R.S. § 16-804; or (3) registered as an independent or no party preferred. A.R.S. § 16-321(F). Thus, a Libertarian candidate for the United States Senate in the 2016 election must obtain at least 3, 034 signatures from the pool of approximately 1, 213, 600 qualified signers who are either registered Libertarians or unaffiliated with a recognized political party. 2016 Statewide Signature Requirements, http: //www.azsos.gov/elections/running-office/running-statewide-office.

         ¶5 Tamburri seeks the Libertarian Party nomination for United States Senator in the 2016 election. Pursuant to § 16-314, Tamburri timely filed a nomination petition which included 4, 205 signatures. Robert Graham, Chairman of the Arizona Republican Party, filed this action challenging the validity of 2, 845 signatures and seeking to exclude Tamburri's name from the Libertarian primary election ballot.

         ¶6 Tamburri concedes that he did not collect at least 3, 034 signatures from "qualified signers" under §§ 16-321 and -322. Instead he argues that the 2015 amendments unconstitutionally burden his First Amendment rights to political speech and association. He also alleges that this action should be dismissed because Graham did not verify his complaint or properly serve it on all defendants. Graham in turn concedes that, if the amendments are unconstitutional, Tamburri obtained enough valid signatures under the pre-2015 version of the statutes to be included on the Libertarian primary election ballot. Thus, on the merits, the parties agree that whether the 2015 amendments to §§ 16-321 and -322 are constitutional is dispositive.

         ¶7 The trial court rejected Tamburri's procedural arguments, upheld the 2015 amendments, and issued an injunction excluding ...


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