Arizona adopted A.R.S. § 16-442, requiring that the Secretary of State designate voting machines “certified for use.” Appellants brought an action seeking declaratory, injunctive, and mandamus relief, alleging that two of the machines Secretary Brewer certified did not fulfill the statutory requirements. Secretary Brewer moved to dismiss the action, asserting that the trial court had no authority under the separation of powers doctrine to determine what voting machines must be used. After oral argument, the trial court exercised judicial restraint and granted the Secretary’s motion to dismiss, refusing to “substitute its opinion for those experts . . . who participated in the process.”
The Arizona Appeals Court vacated the trial court’s order in part, affirmed in part, and remanded the case for further proceedings. The Court held that judicial review of the certification process for the voting machines was “not a political question implicating the principle of separation of powers,” in part because the authority to certify was not “constitutionally committed to the secretary of state,” but was only prescribed by statute. The judiciary had the authority to construe the statute scheme because the issue was whether the Secretary complied with the statutory requirements when she certified the machines. The detailed statutes set out the procedure that must be followed to certify the machines, giving the court “judicially discoverable or manageable standards to resolve this controversy.”
The Court rejected the Secretary’s argument that there was no private right of action under Arizona law because federal courts had already held that there was no private right of action under the federal Help America Vote Act (HAVA). The Court stated that it was not bound by federal case law construing HAVA, and that Arizona case law implies a private right of action, especially when the focus of the statute is to protect the rights of individuals.
The Court further held that appellants had no grounds for relief based on the right to “purity of elections” guaranteed in Article 7, Section 7 of the Arizona Constitution, because appellants had not claimed that the alleged improper certification of the voting machines was due to a failure of the legislature to enact laws guaranteeing pure elections. The Court held, however, that the requirement in Article 2, Section 21 of the Arizona Constitution that elections be “free and equal” is “implicated when votes are not properly counted,” and that appellants may be entitled to injunctive relief if they can show that a significant number of votes will not be properly counted by the voting machines. The Court stated that the appellants could proceed on their claim because they had described sufficient allegations in their complaint that, if true, would entitle them to relief under Article 2, Section 21 of the Arizona Constitution. The Court refused to decide whether appellants’ equal protection claim should be dismissed as legally insufficient, because it could not be determined at that stage of the proceedings.
Judge Hall authored the opinion; Judges Portley and Swann concurred.