District 1 City Council Election Update
Surprise, AZ (September 25, 2018) After extensive legal review, including consultation and obtaining the legal opinion of outside counsel, the City Attorney’s office has issued the following statement regarding the election:
On September 11, 2018, the City Council approved the results of the August 28th primary election received from the Maricopa County Elections Department. The returns showed that James Cunningham and incumbent District 1 Councilmember Roland Winters received the highest number of votes, with 1,247 and 1,189 respectively. In accordance with Arizona law, City Council directed that both Mr. Cunningham and Mr. Winters’ names be placed on the ballot for the November 6th general election for District 1.
On September 19, 2018, the City Clerk received an email message from a resident claiming that Mr. Cunningham is not an eligible candidate, because he was not registered to vote in Surprise when he filed his nominating petitions. The City Clerk has confirmed with the Maricopa County Elections Department that Mr. Cunningham, in fact, was not a registered Surprise voter when he filed his nomination papers, and Mr. Cunningham has confirmed with the City Clerk that he was not registered at that time.
Arizona statutes mandate that a candidate be a “qualified elector” of the City at the time of filing nomination papers to be eligible to appear on a ballot for the Surprise City Council. To be a “qualified elector,” a person must be a registered voter in Surprise. If a candidate is not a “qualified elector” when he or she files their nominating papers, they are not eligible to be elected.
However, the City Clerk is required by Arizona statutes to accept nominating petitions that appear valid on their face and place the candidate on the primary election ballot. Arizona law does not permit the City Clerk to investigate or challenge whether a candidate is a “qualified elector” when he or she files nominating papers. Furthermore, Arizona law provides no authority, absent a court order, for the City Clerk, the City, or the County to remove a candidate’s name from the ballot if it is later determined that he or she is ineligible to be elected.
There were two opportunities for any Surprise elector to challenge by court action Mr. Cunningham’s eligibility to have his name on a ballot, the first being within ten days after the last day for filing nomination petitions, the second within five days after the canvass of the primary election on September 11th. Because these two statutory remedy periods have elapsed with no challenge having been filed, the Arizona Superior Court would likely have no jurisdiction to intervene.
Since the City Clerk lacks any legal authority to remove Mr. Cunningham’s name from the ballot, and no current availability of a statutory remedy exists, the only remaining question is how the votes in the general election will be counted. The Arizona Supreme Court answered this question nearly a half century ago in the case of Tellez v. Superior Court by holding that, “votes cast for a deceased, disqualified or ineligible person are not to be treated as void or thrown away but must be counted in determining the result of an election.” In the event Mr. Cunningham receives the majority of votes cast in the November general election, Arizona statutes provide for an additional opportunity for a Surprise elector to challenge, by court action, his eligibility to hold office. If he fails to receive a majority of votes, the matter becomes moot.