The Court has ruled, but not yet issued its decision, in Morrissey v. Garner, a Payson elections case. Like many Arizona municipalities, the Town of Payson elects its mayor in non-partisan elections held every two years. All eligible candidates run in an August “primary” election; if no candidate receives a majority of the vote, the top two finishers compete in a “general” election held in November. Payson’s current mayor, Thomas Morrissey, garnered a 53% majority in the August 2018 primary, thereby obviating the need for a November general election. Morrissey’s direct election to his office in the August primary was no anomaly; the last time a Payson mayoral contest proceeded to a November general election was in 2002.
Earlier this year, a political committee known as Unite Payson filed an application to commence a recall petition effort against Morrissey. Article VIII, Section 1 of the Arizona Constitution states that a recall petition must include a number of signatures equal to 25% “of the number of votes cast at the last preceding general election” for the office. Relying on the literal text of this provision, the Town Clerk advised Unite Payson that it must obtain 770 valid signatures—i.e., 25% of the votes cast in the November 2002 general election for the office of mayor. Unite Payson subsequently collected and filed the requisite number of signatures and qualified the recall for the ballot.
Morrissey thereafter filed suit, arguing that the Town Clerk should have calculated the signature threshold by reference to the number of votes cast for the office of mayor in the August 2018 “primary” election at which Morrissey was elected. This rubric would produce a prerequisite of 1,225 valid signatures, a number far in excess of the 825 valid signatures submitted by Unite Payson. The Gila County Superior Court (through Maricopa County Superior Court Judge Randall Warner, who sat by designation) ruled in favor of Morrissey, reasoning that “an election from 17 years ago cannot reasonably be considered ‘preceding’” for purposes of computing the signature requirement. The Arizona Supreme Court unanimously agreed, issuing a brief order on December 6 that summarily affirmed the Superior Court judgment and promised a full written opinion in due course.
In an immediate sense, the ruling in Morrissey has little import. While interesting, the question before the court was narrow, discrete, and engendered by a fairly unusual set of circumstances. Indeed, the fact that the term “general election” in Article VIII apparently had not in 107 years generated any controversy is a testament to the relative rarity of recalls. For that reason, the outcome of Morrissey is unlikely to alter the legal landscape confronting petition proponents and election lawyers.
The forthcoming opinion is, however, likely to illuminate more fundamental jurisprudential convictions animating the current court. On its face, Morrissey presents a paradigmatic interplay of competing interpretive schools. Does the literal text of the constitution supersede some putative underlying “intent”? Is the plain meaning of the term “general election” discerned by reference to historical usage, contemporary understanding, or some amalgamation of the two? How, if it all, do the edicts of elections officials and the reasonable expectation of petition proponents and signers inform the constitutional analysis? The Justices’ parsing of these queries may portend broader trends in the court’s approach to matters of constitutional construction and statutory interpretation.
In addition, Morrissey also signals that the Supreme Court increasingly views itself the arbiter of all ballot measure and recall petition disputes. Although the court has long exercised direct appellate jurisdiction over candidate nomination petition challenges and cases involving statewide ballot measures, Arizona Rule of Civil Procedure 10 contemplates that judgments concerning county and municipal ballot measures presumptively are appealed to the Court of Appeals. Morrissey, however, marks the third time in less than a year that the Supreme Court has accepted review of a dispute featuring a local initiative or recall measure—the others being Morales v. Archibald and Ariz. Chapter of the Associated General Contractors of America v. City of Phoenix. Indeed, in Morrissey and Morales, the court permitted the litigants to bypass the Court of Appeals altogether. Given that the court accepted review of only two municipal petition disputes between 1999 and 2015 while rejecting at least twelve such disputes during the same time period, its growing receptiveness to these cases may suggest interest in asserting a more robust institutional presence in this important—and increasingly active—area of the law.
