Goldwater Institute asks Arizona Supreme Court to review appellate judge retention process

Having lost in trial court, the Goldwater Institute is now asking the Arizona Supreme Court to give Maricopa County voters more say in who serves on the Court of Appeals.

Judges serving on one of the state’s two appellate court divisions are up for retention by popular vote every six years.

Except for a handful of judges, only voters from a county a judge resides in get to vote to retain or oust that specific judge.

For example, an appellate judge from Maricopa County’s fate is decided by Maricopa County residents.

The Goldwater Institute says that disenfranchises voters in some circumstances, like when a judge retained in a rural county makes rulings that have statewide impacts.

A trial judge rejected that argument earlier this year, ruling that process does not violate the state constitution.

The basic facts are not in dispute.

There are two divisions of the court, one which covers eight counties and one which covers seven.

But the voting procedure, set up by the Legislature, is even more complex than that.

In Division 1, of the 19 judges, 10 are residents of Maricopa County and it is only residents of that county who decide their future. Five are from the remaining counties in the division -- Yuma, La Paz, Mohave, Coconino, Yavapai. Navajo or Apache — and voted on only by residents of those counties, with four elected at large from all nine counties.

A similar situation exists in Division 2, with four judges elected from Pima County, races in which only Pima residents can vote.

There are two judges from anywhere in Pinal, Cochise, Santa Cruz, Greenlee, Graham and Gila counties whose names appear only on the ballots in those six counties.

And voting for at-large judges depends on the residence of those judges.

Yet, as the Goldwater lawyers pointed out, cases to the appellate court are assigned pretty much at random. So it's possible that a case out of Yuma County will be heard by three judges in Division 1, none of whom were not elected by residents of that county.

In fact, the situation has become more complex now that the Supreme Court has issued an order saying that cases actually can be transferred between divisions to even up the workload. That, for example, is how Kari Lake's appeal of her Maricopa County lawsuit challenging the results of the 2022 gubernatorial race ended up at Division 2.

Goldwater contends all that violates a state constitutional provision which says the right vote shall "equally belong to all citizens.''

"The statute discriminates among Arizona voters based on their county of residency, resulting in unequal voting privileges,'' its legal papers tell the Supreme Court. And it says the numbers bear that out.

The lawyers say that the 2.4 million registered voters in Maricopa County get to vote on retaining an appellate judge from Maricopa County. But the other 640,000 or so voters in Division 1 do not, nor do any of the million voters in Division 2.

Conversely, the electoral fate of an appellate judge from rural parts of Division 2 is decided by fewer than 430,000 registered voters "while the state's remaining 3.7 million votes have no vote — even though all Arizonans are governed by the judge's decision.''

The flip side of all of that, however, is that if Goldwater wins the lawsuit, all voters from all counties will get to decide whether appellate judges, all of whom are appointed by the governor, get new terms in office. And given the voter registration figures cited in the legal papers, that allows for dominance by Maricopa voters.

In fact, that possibility was cited by Gov. Katie Hobbs last year when she vetoed an effort, backed by the Goldwater Institute, to repeal the current system of electing appellate judges and replacing it with a statewide vote. The governor wrote that such a system "would unfairly dilute the votes of those Arizonans most directly impacted by each division's judges.''

That sent Goldwater to Maricopa County Superior Court where Moskowitz tossed the lawsuit saying there is no basis for the claim of constitutional impropriety.