The quirk of Arizona law affecting email elections in local taxable districts might prompt judges to disregard results in cases that could have legal ramifications within the state.

A recent lawsuit has raised questions about the outcome of a May 2023 election in Cochise County, where voters narrowly approved a new tax to fund the county jail. However, without changes in legislation related to this law, similar elections may face future challenges.

This legal dispute involves four residents who argue that ballots for the prison tax election should have been sent to about 11,000 inactive voters in the county. Inactive voter status, as defined by state law, is determined if election mail is returned as undelivered or if the voter has moved and is not reachable. While state laws typically prevent ballots from being sent to inactive voters in many elections, local governments have historically used tax district votes to fund various projects, like stadiums and parks. Yet, the law surrounding this is somewhat ambiguous, and judicial decisions have left it open to interpretation.

Last June, the Arizona Court of Appeals ruled that Cochise County must send ballots to inactive voters in such elections, thereby mandating the county to do so for all-mail prison tax elections. This matter was forwarded to the Arizona Supreme Court last month. The Appellate Court’s ruling instructed local judges to assess whether not sending ballots to inactive voters influenced the election’s outcome, which saw the tax garner 750 votes out of a total of 25,032.

If a judge determines that the result was altered, it’s possible the election outcome could be nullified. However, neither side seems eager for that to happen.

Previous supervisors in Cochise County defended the election in court. But, after two new Republican members joined the board post-election, they began supporting the case.

In an interview, supervisors Frank Antenoli and Kathleen Gomez expressed shared concerns with the plaintiff, suggesting that supervisors shouldn’t have voted in taxable districts separately from the higher-turnout November general election. They also felt inactive voters should be allowed participation.

Interestingly, while they both agree on the need for a new prison, they argue that an election shouldn’t have occurred in the first place, believing the county doesn’t require a new tax for it. They’re currently negotiating a settlement that might potentially reverse the election’s outcome.

This situation prompted Democrat Adrian Fontes to seek involvement in the lawsuit to safeguard the election results. His office, led by Attorney General Chris Mays, saw the election as “not to be disregarded by the agreement of the involved parties.”

The judge needs to decide quickly whether Fontes can join the proceedings. Meanwhile, Cochise County supervisors are scheduled for a meeting to explore settlements further.

Legal Risks for the County from Supreme Court Movements

According to the law regarding special tax district elections, the county recorder must send ballots to every eligible voter. Initially, the county supervisors contended that inactive voters had no voting rights and thus should not receive ballots. The Court of Appeals countered this perspective, clarifying that “qualified electors” include properly registered individuals, even those on the inactive list.

The Court of Appeals’ ruling, alongside the actions by the state Supreme Court, puts various counties in a tricky spot. While the Supreme Court upheld the Appeals Court’s views, these decisions are particular to the Cochise case and don’t establish a statewide precedent. This scenario allows the county to potentially exclude inactive voters from future email elections, yet could open them up to legal challenges similar to those in Cochise County.

Cochise’s newly appointed lawyer, Tim Lasota, emphasized that ballots should still be sent to inactive voters, pointing out the risks involved in ignoring the Court of Appeals’ decision. “If you disregard that ruling, you could face similar challenges based on the same grounds,” he remarked.

If the county disagrees, he suggests they should lobby state legislators to seek a change in the law.

Interestingly, even Antenoli, who wishes to set aside the election, shares the sentiment that inactive voters should not receive ballots.

Opportunities to Cancel Prison Taxes Amid Disputes

The case is now before a judge in Apache County Superior Court, mainly due to a conflict of interest. The judge is currently contemplating how the county’s failure to send votes to inactive voters might affect the election results.

Next steps likely involve discussions on how this omission influenced the election outcome, often analyzed through vote calculations involving those on the inactive list. However, Antenoli and Gomez expressed intent to propose a settlement to the judge, aiming to invalidate the election results.

Antenoli hopes some of the settlements may include canceling the prison taxes altogether. Meanwhile, Gomez is uncertain about the exact shape a settlement should take, stating that the county need not “fight to uphold that tax.”

Fontes’ intervention claims his office is concerned that the election results should not be decided through adversarial processes in the judicial system, but rather through a fair electoral process. Lasota, opposing Fontes’ involvement, accused him of attempting to deprive 11,000 Cochise County voters of their rights.

Corrected March 20th: An earlier version of this story inaccurately portrayed the Supreme Court’s actions in this case and was updated to note that the case is awaiting proceedings in an Apache County Superior Court.