Supreme Court Clarifies Recall Election Threshold For Many Cities/Towns

Today the Supreme Court issued its opinion in Morrissey v. Garner, a recall case out of the Town of Payson. The Court ruled in Morrissey’s favor late last year, and today’s opinion provides the full reasoning behind the Court’s decision.

The case stemmed from a 2019 effort by Unite Payson to recall Mayor Tom Morrissey.  Under the Constitution, a recall election may be called if a group collects signatures equaling at least “twenty-five per centum of the number of votes cast at the last preceding general election for all candidates for the office held by such officer.”  In Payson, much like many other municipalities in Arizona, the town code only contemplates a “general election” if no candidate receives at least 50% of votes in the preceding primary election.  Payson holds mayoral elections every two years, but the town had not held a “general election” since 2002 because every mayoral candidate since that time had received enough votes at the primary election.  So when Unite Payson applied for a serial number to circulate the recall petition against Morrissey in 2019, the town clerk wrestled with the decision whether to calculate the 25% recall threshold based on the last preceding election, which was the 2018 primary, or the last preceding general election, which was the 2002 general election.  She chose the latter measure and therefore told Unite Payson the recall threshold was 770 signatures.  Unite Payson gathered just enough signatures to exceed that threshold.

Morrisey filed suit and argued the recall threshold should have been 1255 signatures, based on the votes cast at the 2018 primary election.  The trial court agreed, and since Unite Payson had only filed enough signatures to meet the lower threshold, the recall effort was enjoined from appearing on the ballot.  The Supreme Court affirmed, with an opinion to follow in due course.

Today the Supreme Court held as follows:

This Court has applied that functional approach in defining general and primary elections. As we stated in Kyle v. Daniels, a primary election is “a competition for the party’s nomination, no more, no less, and does not elect a person to office but merely determines the candidate who will run for the office in the general election.” “In contrast, a general election actually determines which candidate will hold the office.” Id.

Our Constitution’s general procedures for primary and general elections also reflect this approach. Article 7, section 10 provides for primary elections to “provide for the nomination of candidates” to “all elective State, county, and city offices.” Meanwhile, article 7, section 11 provides that “[t]here shall be a general election of representatives in congress, and of state, county, and precinct officers” on a specified date in November in even-numbered years.

However, article 7, section 11 omits any reference to cities or towns. As a matter of constitutional interpretation, we presume that where like-natured entities are listed but others are not, the omitted entities were meant to be excluded. This principle applies even more strongly given that cities and towns are expressly covered by article 7, section 10’s provision governing primary elections but are not included in article 7, section 11. Thus, we conclude that cities and towns are meant to be excluded from the constitutional provision establishing the purpose and timing for general elections.

The further explained the policy concerns undergirding its decision:

A different reading would produce anomalous results. For instance, a town (like Payson) in which the last general election was many years ago might now have a markedly smaller or larger population, thus linking the required signatures to a number bearing little relationship to the election at which the relevant official was elected. And as Morrissey points out, a new city or town adopting a system like Payson’s that elected its first mayor at a primary election would never have held a general election for that office. In such circumstances, the reading of the constitutional provision urged by Unite Payson would thwart a recall. Treating a primary at which candidates are effectively elected as a general election, as the Constitution and statutes permit cities and towns to do, is the proper basis for determining the requisite number of signatures for a recall petition.

This opinion provides welcome guidance to clerks across Arizona, finally settling a question left unaddressed for over a century in Arizona election law.


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