1

MUNGER, CHADWICK & DENKER, P.L.C.

2
333 North Wilmot Road, Suite 300
Tucson, Arizona 85711
3 Telephone: (520) 721-1900
Facsimile: (520) 747-1550
4
John G. Anderson
5 AZ Bar No. 030854; PCC No. 66616
JGAnderson mcd lc. com
6 Zachary L. Cohen
7
AZ Bar No. 033853; PCC No. 67039
ZLCohen mcd lc. com
8 Attorneys for the Plaintiffs
9 IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF PIMA
10
11 BENNY WHITE, a citizen and qualified
elector ofTucson, Arizona; ANN HARRIS,
12 a citizen and qualified elector ofTucson, CaseNo. :C20193542
Arizona; and MIKEEBERT, a citizen and
13
qualified elector ofTucson, Arizona,
14
Plaintiffs, RESPONSE TO THE REAL
15 PARTIESIN INTEREST'S
16 vs. PARTIAL MOTION TO DISMISS

17 ROGER RANDOLPH, in his official

capacity as City Clerk of the City of Assigned to: The Honorable D. Douglas
18
Tucson; F. ANN RODRIGUEZ, in her Metcalf, Division 16
19 official capacity as Pima County Recorder;
JONATHAN ROTHSCHILD, in his official
20 capacity as Mayor of the City ofTucson;
21 REGINA ROMERO, in her official capacity
as Councilman of the City ofTucson for
22 Ward One; PAUL CUNNINGHAM, in his
official capacity as Councilman of the City
23
ofTucson for Ward Two; PAUL
24 DURHAM, in his official capacity as
Councilman of the City ofTucson for Ward
25 Three; SHIRLEY SCOTT in her official
26 capacity as Councilman of the City of
Tucson for WardFour; RICHARD
27 FIMBRES, in his official capacity as
Councilman of the City ofTucson for Ward
28
 1 Five; STEVE KOZACHIK, in his official
2 capacity as Councilman of the City of
Tucson for Ward Six; BRAD NELSON, in
3 his official capacity as Elections Director of
the Pima County Elections Department,
4
ALLY MILLER, in her official capacity as
5 Pima County Supervisor of District 1;
RAMON VALDEZ, in his official capacity
6 as Pima County Supervisor of District 2;
7
SHARON BRONSON, in her official
capacity as Pima County Supervisor of
8 District 3; STEVE CHRISTY, in his official
capacity as Pima County Supervisor of
9
District 4; and RICHARD ELIAS, in his
10 official capacity as Pima County Supervisor
of District 5,
11
Defendants,
12

13
vs.
14

15 PEOPLE'S DEFENSECOMMITTEE, an
unincorporated association; MARION
16 CHUBON, a citizen and qualified elector of
17 Tucson, Arizona; STEVE DIAMOND, a
citizen and qualified elector ofTucson,
18 Arizona; and JOEL FEESTMAN, a citizen
and qualified elector of Tucson, Arizona,
19
20 Real Parties in Interest.

21
The plaintiffs, by and through undersigned counsel, hereby respond to Real Parties
22
in Interest the People's Defense Committee, Marion Chubon, Steve Diamond, and Joel
23
Feinman's (together "the Committee") partial motion to dismiss. For the reasons set forth
24
in the attached memorandum ofpoints and authorities, the partial motion to dismiss must
25
be denied. This response is supported by the attached memorandum of points and
26
authorities, the exhibit thereto, and the entire record in fhis matter.
27
28

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2
MEMORANDUMOF POINTSAND AUTHORITIES
3
I. INTRODUCTION
4
The Committee's motion to dismiss must be denied. First, because Part I, Chapter
5
XIX, Section 1 of the Charter of the City ofTucson ("the Charter Provision") is
6
unconstitutional and preempted by state law, or at the very least was misapplied so as to
7
yield an absurdresult, the Tucson City Clerk (the "Clerk") erredby certifying the
8
Initiative1 for placement on the ballot with fewer than the minimum number of valid
9
signatures required. 2 Second, several petition circulators failedto include their residence
10
city, state, andzip code on their circulator affidavits, thereby invalidating all signatures
11
made on their petition sheets. Finally, several thousand petition signers left their
12
signature lines incomplete by failing to provide their ward numbers, thereby invalidating
13
the signatures.
14
The Committee's instant motion does not contest any of the material facts
15
underlying these allegations. The Committee does not dispute that the Clerk certified the
16
Initiative for placement on theNovember 2019 ballot based on a minimum requirement
17
of 9,241 valid signatures. The Committee also does not dispute that several thousand
18
petition signatures were submitted on signature sheets with circulator affidavits that do
19
not include the circulators' residence city, state, and zip code. Further, the Committee
20
does not dispute that several thousand signatures were submitted without including the
21
signers' ward number. The Committee only disputes whether these circumstances entitle
22
the plaintiffs to the relief sought in their complaint.
23
\ That is, the "Tucson Families Free and Together" initiative.
24 2 TheCommittee's motion to dismiss demonstrates a misunderstanding ofthe concept of
alternative pleading, which is expressly permitted under Rule 8(a)(3), Ariz. R. Civ. P.
25 The plaintiffs' complaint sets forth two alternative valid signature requirements for an
initiative to be placed on the ballot in Tucson. If the Charter Provision is unconstitutional
26 and/or pre-empted by State law, then the minimum number ofsignatires required
pursuant to State law is 12,821. If, in the alternative, this Court concludes that the
27 Charter Provision is somehow constitutional andnot pre-empted by State law, then the
minimum number of signatures required pursuant to a rational interpretation ofthe
28 Charter Provision is 12,363.

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 1
As the Court is aware, the purely legal questions at issue in this motion have been
2
set for oral argument on August 12, 2019. As set forth below, the Court can, and surely
3
will, resolve these legal questions in favor ofthe plaintiffs, and mle that the undisputed
4
facts entitle the plaintiffs to relief. Thus, dismissal is inappropriate, and the instant
5
motion must be denied.
6
II. FACTUAL BACKGROUND
7
As ofthe last general election in 2017, there were 241, 495 people registered to
8
vote in the city ofTucson. Fifteen percent ofthis total number ofvoters is 36,225.3
9
OnDecember 4, 2018, the Committee submitted anInitiative Petition Application
10
for SerialNumberto the Clerk. The Clerk issuedthe Committee serial number 2018-
11
1001 andindicated that the Committee needed to submit 9,241 valid signatures by July 5,
12
2019, for the Initiative to be placed on the ballot. 9,241 is only 3. 83% ofthe total number
13
of registered voters in Tucson as of the last general election.
14
On July 3, 2019, the Committee filed 18,200 signatures with the Clerk. 18,200 is
15
only 7. 54% ofthe total number ofregistered voters in Tucson as ofthe last general
16
election. Of the signatures submitted by the Committee, 14, 667 (or 80. 59%) were
17
submitted on signature sheets with circulator affidavits that do not include the
18
circulators' residence city, state, and zip code, and 4,248 (or 23. 34%) were submitted
19
without including the signers' ward number.
20
On July 15, 2019, based on the Pima County Recorder's partial verification of a
21
random sample of 871 signahires, the Clerk certified that 12, 488 of the signatures
22
submitted by the Committee were valid. Thus, because 12, 488 is greater than the 9,241-
23
signature threshold originally selected by the Clerk, the Clerk declared that the Initiative
24
would be placed on the ballot. 12, 488 is only 5. 17% of the total number of registered
25
voters in Tucson as of the last general election.
26
27 3 Fifteenpercent of241,495 is actually 36, 224. 25. However, as it is nonsensical to count
parts of voters, the plaintiffs have taken the liberty ofroundlng up to the next whole
28 voter.

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III. ARGUMENT
2
Dismissal is only appropriate under Ariz. R. Civ. P. 12(b)(6) where the plaintiff,
3
as a matter of law, would not be entitled to relief under any interpretation ofthe facts
4
susceptible ofproof. Coleman v. City ofMesa, 230 Ariz. 352, 356, ^ 8, 284 P.3d 863,
5
866 (2012). "We assume the truth of all well-pleaded factual allegations and indulge all
6
reasonable inferences from those facts, but mere conclusory statements are insufficient."
7
Id. atTT9. Basedon the facts pled in the plaintiffs' complaint, whichare apparently
8
undisputed by the Committee, the plaintiffs are entitled to relief. Therefore, the instant
9
motion must be denied.
10
A. THE CHARTER PROVISION IS UNCONSTITUTIONAL.
11
As the plaintiffs set forth in Count 1 ofthe amended complaint, the Charter
12
Provision is unconstitutional because it violates Article 4, Part 1, Section 1(8) ofthe
13
Arizona Constitution by wrongfully allowing an initiative to appear on the ballot with far
14
fewer than the constitutionally required minimum number of signatures.
15
The Constitution states that "[u]nder the power of the imtiative fifteen per centum
16
of the qualified electors may propose measures on such local, city, town, or county
17
matters .... " Ariz. Const. Art. IV, Pt. 1 § 1 (emphasis added). "Qualified electors" is
18
defined by statute: "[a] person who is qualified to register to vote pursuant to § 16-101
19
and who is properly registered to vote shall... be deemed a qualified elector . .."
20
A. R. S. § 16-121.
21
The Committee correctly points out that the Constitution allows cities, until a
22
general law is passed, to "prescribe the basis on which said percentages shall be
23
computed. " Ariz. Const. art. IV, Pt. 1 § 1 (emphasis added). However, the basis upon
24
whichthe number of qualified electors is computed refers only to the election used to
25
determine the number of qualified electors. See Homebuilders Ass'n of Cent. Arizonav.
26
City ofScottsdale, 186 Ariz. 642, 644, 925 P.2d 1359, 1361 (Ct. App. 1996), as modified
27
(Mar. 7, 1996) ("The issue in both cases is whether the February 1994 or the March 1994
28

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 1
Scottsdale city election should be used as the basis of calculating the number of
2
signatures required for a referendum to be eligible for the city ballot. ").
3
Here, the Charter Provision goes far beyond simply changing the basis, or
4
election, upon which the number of qualified electors is calculated, and as a result,
5
requires an artificially deflated minimum number ofsignahires for an initiative to be
6
placed on the ballot. The Charter Provision changes the calculation for determining the
7
number of qualified electors from fifteen percent of the "whole number of votes cast, " as
8
provided in A.R. S. § 19-143(A), to fifteen percent of the "vote[s] for the candidates for
9
mayor.... ". Seethe Charter Provision (emphasis added). The result is that many qualified
10
electors are specifically excluded from the calculation of required signatures - namely
11
those registered voters who voted in the last election but did not cast a vote for a
12
candidate for mayor - in direct violation of the Constitution's requirement that fifteen
13
percent ofqualified electors must sign an initiative petition for the initiative to be placed
14
on the ballot. As the Charter Provision goes beyond modifying the simple basis - or
15
election - upon which fifteen percent ofqualified electors is calculated, andin so doing
16
disregards an entire category of qualified electors, it is unconstitutional and invalid.
17
In the absence ofthe charter provision, A.R. S. § 19-143(A) applies, which states
18
that the basis upon which the qualified electors are computed is the most recent election
19
in which a mayor or councilman was elected. The previous election for mayor or
20
councilman was the 2017 general election. Fifteen percent of the qualified electors
21
calculated on the basis ofthat election is 12, 821. The plaintiffs are entitled to declaratory
22
and injunctive relief under Count 1 because the required number of valid signatures to
23
place an initiative on the ballot is 12, 821, which is 333 signatures more than the number
24
of signatures for the instant initiative certified by the Clerk. Therefore, the motion to
25
dismiss as to Count 1 must be denied.
26
B. THE CHARTER PROVISION IS PREEMPTED BY STATE LAW.
27
As the plaintiffs set forth in Count 2 of the amended complaint, even if it the
28

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Charter Provision were constitutional, it is preempted by A. R. S. § 19-143(A) and does
2
not apply. Under the Constitution ofthe State ofArizona "eligible cities may adopt a
3
charter-effectively, a local constitution-for their own government without action by
4
the state legislature [and a] home rule city deriving its powers from the Constitution is
5
independent of the state Legislature as to all subjects of strictly local municipal concern."
6
City ofTucson v. State, 229 Ariz. 172, 174, 273 P. 3d 624, 626 (2012) (internal citations
7
omitted). However, the Supreme Court ofArizona "has repeatedly constmed statutes
8
which have been determined to be general laws of state-wide application and interest, not
9
to be within the realm orjurisdiction of the powers of municipalities including charter
10
cities. " City ofTucson v. Arizona Alpha of Sigma Alpha Epsilon, 67 Ariz. 330, 335, 195
11
P. 2d 562, 565 (1948). Specific to the issue here, "Arizona courts have recognized that the
12
Constitution ofArizonare uires the legislature's involvement in issues relating to
13
elections conducted by charter cities, including initiative andreferendum elections .. ."
14
City ofTucson v. State, 229 Ariz. at 178 (emphasis added); see also Fleischman v.
15
Protect Our City, 214 Ariz. 406, 409, ^ 15 (2007) ("While the Arizona Constitution gives
16
localities broad initiative and referendum powers, when a local law conflicts with a state
17
statute, the local law is invalid. ").
18
As the state legislature is re uired to be involved in issues related to initiatives in
19
charter cities, city charterprovisions that conflict with state statutes regarding mitiative
20
elections are preempted. The state legislature adopted a general law about voter
21
initiatives in cities and towns - A. R. S. § 19-143 - and the Charter Provision is
22
inconsistent with that general law.
23
For the same reasons set forth above, the Charter Provision is in direct conflict
24
with the general law because it changes more thanthe basis - or election - upon which
25
fifteen percent of qualified electors is calculated. Again, the Committee points out that
26
A. R. S. § 19-143(A) specifically allows cities to determine the basis for computing fifteen
27
percent of the number of qualified electors, but the Charter Provision also changes the
28

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 1
calculation for determining the number of qualified electors by narrowing the calculation
2
from fifteen percent of the "whole number of votes cast, " to fifteen percent of the
3
"vote[s] for the candidates for mayor.... ". Compare A. R.S. 19-143; -withthe Charter
4
Provision (emphasis added). Because the relevant state statute and the Charter Provision
5
are in direct conflict regarding the calculation for determining the number of signahires
6
required, the state statute applies.
7
Pursuant to A. R. S. § 19-143(A), fifteen percent of qualified electors is calculated
8
from the "whole number ofvotes cast" in the last election where a mayor or councilman
9
was elected. The last election for mayor or councilman was the 2017 general election.
10
Fifteen percent of qualified electors, calculated on the basis of that election, is 12, 821.
11
The plaintiffs are entitled to declaratory and mjunctive relief under Count 2 because
12
A. R. S. § 19-143(A) preempts the Charter Provision, and the required number of valid
13
signatures to place an initiative on the ballot is actually 12, 821, whichis 333 signatures
14
more than the number of signatures for the instant initiative certified by the Clerk.
15
Therefore, the motion to dismiss as to Count 2 must be denied.
16
C. THE CLERK'SINTERPRETATIONOF THE CHARTER PROVISION
17 YIELDS AN ABSURD RESULT.
18 Even if the Court somehowmles that the Charter Provision is constitutional and
19 not preempted by state law, the plaintiffs are still entitled to declaratory andinjunctive
20 relief under Count 3 of the complaint, because the Clerk's interpretation of the Charter
21 Provision as requiring only 9,241 for an initiative to appear on the ballot is an absurd
22 result. An absurd result is one "so irrational, unnatiral, or mconvenient that it cannot be
23 supposed to have been within the intention of persons with ordinary intelligence and
24 discretion. " State v. Estrada, 201 Ariz. 247, 251, ^ 17, 34 P. 3d 356, 360 (2001).
25 Moreover, "[s]tatites must be given a sensible construction which will avoid absurd
26 results. " LakeHavasu City v. Mohave Cty., 138 Ariz. 552, 557, 675 P.2d 1371, 1376 (Ct.
27 App. 1983). The Clerk's interpretation of the Charter Provision yields an absurd result
28

-8-
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that contradicts the intent ofthe initiative power as granted by the Constitution ofthe
2
State of Arizona.
3
Again, Art. IV, Pt. 1, § 1(8) of the Constitution of the State of Arizona mandates
4
that petitions for city and town initiatives must be supported by fifteen percent of the
5
qualified electors (that is, individuals that are properly registered to vote). The Tucson
6
city charter mirrors this intent by stating: "Any proposed ordinance may be submitted to
7
the mayor and council, by a petition signed by fifteen (15) percent ofthe qualified
8
electors ofthe city .... " Part I, Chapter XIX, Section 1 ofthe Charter ofthe City of
9
Tucson. The Constitution, state statutes, andthe city charter all recognize thatfifteen
10
percent ofqualified electors determines the number ofsignatures required to place an
11
initiative on the ballot. The Charter Provision elaborates on how to detemime the number
12
of qualified electors4 by stating that the number is "computed on the vote for the
13
candidates for mayor at the last preceding general municipal election at whicha mayor
14
was elected."
15
The previous election at which the mayor was elected was November 3, 2015. In
16
that election, 82,420 qualified electors castballots in city-only races. Ofthose votes cast,
17
61, 358 votes were for the only listed candidate on the ballot, the Democratic candidate.
18
An additional 4, 327 voters wrote-in a candidate's name, of which only 245 write-in votes
19
were cast for "registered candidates. " Of the remaining voters that submitted ballots, 22
20
"over voted" for mayor - meaning more than one bubble was filled in -- and 16, 713
21
qualified electors, who voted for other offices and/or propositions, did not vote in the
22
mayoral election. When calculating the number of signatures required to place an
23
initiative on the ballot, the Clerk addedthe number of qualified electors that voted for the
24
Democratic candidate, 61, 358, to the number of qualified electors that submitted write-in
25
votes for "registered candidates, " 245, and multiplied the total by fifteen percent. The
26
Clerk thus decided that the required number of signatures to place an initiative on the
27
28 4 Unconstititionally andin conflict with state law, as outlined above.

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ballot was 9,241. This total ignores those qualified electors that voted for non-registered
2
write-in candidates, erroneously filled in too many bubbles on the ballot, or chose not to
3
cast a vote for a mayoral candidate that they did not prefer.
4
Using the Clerk's interpretation of the Charter Provision, over sixteen thousand
5
qualified electors, who were properly registered and canbe identified, were not counted
6
towards the number of signatires required to place an initiative on the ballot, simply
7
because they did not want to vote for the only listed mayoral candidate. The Clerk
8
thereby discounted qualified electors that didnot have a candidate from their political
9
party running for mayor in that specific election. Our country was founded on the
10
principle "that though the will of the majority is in all cases to prevail, that will to be
11
rightful must be reasonable; that the minority possess their equal rights, which equal law
12
must protect and to violate would be oppression. " Thomas Jefferson, First Inaugural
13
Address (1801). The initiative power was never intended to only give a voice to the
14
political party in power, yet the Clerk's interpretation excludes qualified electors that
15
belong to a minority party without a candidate to vote for in the previous mayoral
16
election. It is an absurd result for the Charter Provision to be interpreted so as to
17
disenfranchise voters from a minority political party.
18
The Committee erroneously asserts that the plaintiffs take exception to the
19
definition of "candidate. " The plaintiffs do not disagree that the plain language of the
20
Charter Provision provides that only voters thatcastvotes for a candidate for mayor are
21
counted towards the fifteen percent minimum signature requirement to place an initiative
22
ontheballot. 5 The absurdresult is thatthe computation set forthby theplainlanguageof
23
the Charter Provision is in direct conflict with the plain language of the ve same
24
revision, which requires fifteen percent of qualified electors to be counted. Because the
25

26 5 It is worth noting that the definition for "candidate" cited by the Committee includes
not only individuals that aspire to an office, but also includes individuals nominated for
27 office. Thus, the definition cited by the Committee suggests that, at minimum, all
individuals nominated by a write-in vote, regardless oT'their subjective desire, ' should
28 have been counted.

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plain language of the Charter Provision creates this conflict, the Court must look at the
2
intent behindthe Constitution andthe city charter. Wardv. Stevens, 86 Ariz. 222, 228-
3
29, 344 P. 2d 491, 495 (1959) ("If enforcing the clear language of the constitution results
4
in an absurd situation, the court may look behind the bare words of the provision to
5
discern its intended effect").
6
According to the Arizona Court ofAppeals, "Two principles can be discerned
7
from [Ariz. Const. Art. IV, Part 1, §§ 1(7) and 1(8)]. First, the drafters intended that more
8
signatures berequired to propose aninitiative than a referendum; second, a higher
9
percentage of 'qualified electors' is necessary to place an initiative or referendum on a
10
city ballot than on a state ballot. " Homebuilders Ass'n, 186 Ariz. at 646. The Constihition
11
requires a higher threshold for city initiatives than state-wide mitiatives. Because of this
12
constitutional requirement, the plain language of the Charter Provision -- which excludes
13
properly registered voters who cast votes for other offices - creates a result that is so
14
irrational, unnatural, andinconvenient that it could not have beenthe intention ofpersons
15
with ordinary intelligence and discretion.
16
Counting only the votes cast for candidates for mayor when only one candidate -
17
from onepolitical party - ran for mayor in the last election is simply absurd andyields a
18
result that cannot possibly reflect fifteen percent of qualified electors. The Charter
19
Provision describes what it is intended to do - calculate fifteen percent of qualified
20
electors - yet the formula provided by the same revision is facially ineffective at
21
accomplishing that intent. Because "[s]tatutes must be given a sensible construction
22
whichwill avoid absurd results, " the Court must interpret Charter Provision to provide
23
that all qualified electors who voted in the last election in which a mayor was elected
24
should have been counted. Lake Havasu City, 138 Ariz. at 557.
25
Thus, if the Court somehow does not find that the Charter Provision is
26
unconstitutional or preempted by state statute, the plaintiffs are entitled to relief in the
27
form of a declaration that the Charter Provision charter should be interpreted to reflect
28

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the intent ofthe drafters, which in this casewould require 12,363 signatures to place an
2
initiative ontheballot. 6 12,363 is 125 signatires fewerthanthenumber submitted bythe
3
Committee. However, as set forth in Counts 6 and 7 ofthe amended complaint, the
4
plaintiffs challenge more than enough signatures to drop the Committee's total below
5
12,363. As such, the motion to dismiss as to Count 3 must be denied.
6
D. CITY, STATE, AND ZIP CODE ARE REQUIRED IN THE "RESIDENCE
7 ADDRESS" ON CIRCULATOR AFFIDAVITS.
8 The plaintiffs are entitled to relief under Count 6 of the amended complaint
9 because 14, 667 (or 80. 59%) of the Committee's petition signatures were submitted on
10 signature sheets with circulator affidavits that did not include the circulators' residence

11 city, state, or zip code.

12 The Committee claims that the law does not require petition circulators to include
13 their city, state, and zip code in the "residence address" on a circulator affidavit.

14 However, the plain definition of "residence address" is "the sb-eet address and any
15 apartment number . . . and the ci state and zi code that correspond to a person's
16 residence. " "residence address. " Lawinsider. com. https://www. lawinsider. com/
17 dictionary/residence-address. July 30, 2019 (emphasis added).

18 The Committee attempts to rely upon A. R. S. § 19-112, which specifically requires

19 "street and number, " to suggest that the statute does not require the city, state, or zip
20 code. But the mention of street and number simply mdicates that P. O. Box addresses are

21 not valid for initiative petition measures. See Jenkins v. Hale, 218 Ariz. 561, 564, 190
22 P. 3d 175, 178 (2008) ("Unlike statutes governing initiative, referendum, and recall

23 petitions, no statute directs election officials to invalidate nominating petition signatures

24 that contain a post office box address. "); Ariz. Op. Att'y Gen. No. 109-011 (Dec. 9, 2009)
25 ("Signatures onpetitions for referendum, initiative or recall that include only a post
26 office address, andnot a residence address or description ofresidence location, must be
27
28
6 12,363 is fifteenpercent ofthewhole number ofvotes castduringthe 2015 general
election, the last time a mayor was elected.

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disqualified. ").
2
The Legislature used the term "residence address" deliberately because it
3
necessarily includes the city, state, and zip code. A look at other statutes makes this clear.
4
A. R. S. §§ 19-101 and 19-102 require initiative signers to include an "actual address" -
5
as opposed "residence address" - which "achial address" is comprised only of street
6
name and number, because there is a separate columns on the petition form for zip code
7
and city or town. The fact that the state statutes delineate between "actual address" -
8
which does not include state, city or town, and zip code - and "residence address"
9
suggests that the residence address is intended to be a more complete address including
10
state, city or town, and zip code. Further, A. R. S. § 19-121. 02(A)(1) refers to all the
11
necessary residential information that petition signers are required to provide - that is,
12
the "actual address" (street name andnumber), zip code, andcity or town - together as
13
the "residence address."
14
The Committee points out that "there is no reason to require different types of
15
address mformation from circulators andqualified electors. " The plaintiffs do not dispute
16
this. However, petition signers are required to provide their "actual address" (street name
17
and number), zip code, and city or town, in three separate columns. On the circulator
18
affidavit, there is only one space for the circulators' address information, labelled
19
"residence address. " Thus, in order for the circulators to provide the same information as
20
the petition signers, a "residence address" must include zip code and city or town.
21
The sample affidavit created by the Secretary of State for state-wide initiatives
22
confirms this. It specifically requires circulators to include the city, state, andzip code on
23
the circulator affidavit. See the Arizona Secretary of State's Sample form for Initiative
24
Measure to be Submitted Directly to Electors, attached hereto as Exhibit 1. Petitioners
25
who use the Secretary of State's form enjoy a presumption ofvalidity under A. R. S. § 19-
26
102. 1(B). By failing to require circulators to list their city, state, and zip code, the
27
Committee's petition mns afoul of this presumption of validity.
28

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There are two reasons the legislatire requires circulators to provide the city, state,
2
andzip code. First, challengers must be able to subpoena circulators in challenges to
3
initiative petitions based on improper conduct by the circulator, or if the sworn
4
statements in the circulator affidavits are alleged to be false. Without city, state, and zip
5
codes, challengers cannot effectively subpoena petition circulators. Second, challengers
6
need to know whether a given circulator was required to register with the Clerk. A. R. S. §
7
19-118 requires all circulators that are not residents of the state to register as circulators
8
with the Secretary of State. A. R. S. § 19-141 (A) requires the Clerk to perform the
9
functions of the Secretary of State in city and town initiatives. Without including the city,
10
state, and zip code, challengers are unable to determine whether a circulator that lists the
11
address of "2058 S. Wahiut Ave. "-like the circulator ofpetition form no. 177-lives in
12
Yuma, Arizona; New Braunfels, Texas; White Cloud, Michigan; or any other number of
13
cities across the country. Thus, challengers cannot determine whether out of state
14
circulators, if any, properly registered with the Clerk before circulating their petition
15
sheets.
16
A. R. S. 19-112(F) declares that "[a]ny petition that contains a partially completed
17
affidavit or an affidavitthat has been modified is invalid." The Plaintiffs have identified
18
in Count 6 multiple circulator affidavits that have been modified, as well as are
19
incomplete, and these modified affidavits must also be invalidated.
20
Circulator affidavits that do not list the city, state, and zip are incomplete, and the
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signatures on petition forms bearing such defective affidavits are invalid for the purposes
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of placing an initiative on the ballot. Therefore, the plaintiffs are entitled under Count 6
23
to injunctive relief in the form of the Court requiring the City Clerk to invalidate the
24
signature sheets with invalid cu-culator affidavits in accordance with A. R. S. 19-121. 01.
25
14, 667 (or 80. 59%) of the Committee's petition signatures were submitted on signature
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sheets with incomplete circulator affidavits. If the Clerk hadproperly invalidated all
27
signatures on petition sheets bearing incomplete circulator affidavits, the Committee
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would have an insufficient number of valid petition signatures under any calculus. For
2
these reasons, the motion to dismiss must be deniedas to Count 6.
3
E. SIGNATURES WITH MISSING WARD NUMBERS ARE INVALID.
4
4, 248 (or 23. 34%) ofthe Committee's petition signatures were submitted with the
5
column for the petition signers' ward number left blank. These petition signatures should
6
have been invalidated by the Clerk.
7
The Committee argues that it is unaware ofanyprovision that requires initiative
8
signers to provide their ward number when signing a petition. While there is no statite
9
expressly requiring city initiative petition signers to list their ward number, it is clearly
10
required by the form, as well as by the Clerk's stahitory duties in city-wide mitiative
11
drives under A.R. S. § 19-141 (A).
12
A.R. S. § 19-121. 01(A)(2) requires the Secretary of State to identify the county of
13
residence ofthe majority ofpetition signers on eachpetition sheet, andto remove any
14
signatures ofpetition signers from other counties. The signers from other counties are
15
removed because state-wide petitions require signers to avow that they are each "a
16
qualified elector ofthe state ofArizona, county of [blank for the majority county]. " Thus,
17
the Secretary of State must be able to quickly identify signers whose counties of
18
residence are inconsistent with the avowal made when signing the petition. Similarly, the
19
city petition forms require signers to avow that they are a "qualified elector ofthe City of
20
Tucson, State of Arizona. " A. R. S. § 19-141 (A) requires the Clerk to perform the
21
functions ofthe Secretary of State in city andtown initiatives. A.R. S. § 19-141(D)
22
requires the procedures for municipal initiatives to be as nearly as practicable the same as
23
the procedure for the state at large.
24
Obviously, the entire City ofTucson is withm the boundaries ofPima County.
25
However, there are hundreds of thousands of citizens ofPima County who reside outside
26
the Tucson city limits, and thus are ineligible to sign petitions for Tucson initiatives, but
27
who nonetheless have Tucson addresses. The city initiative petition form includes a
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space for petition signers to fill in their wardnumber, so that the Clerk can easily identify
2
any petition signers with Tucson addresses that do not reside within the Tucson city
3
limits.
4
Signature lines that have not been completely filled out are invalid and must be
5
disqualified. It is nonsensical for the Clerk to provide an initiative petition form, and then
6
not require petition signers to accurately and completely fill out the form.
7
The Clerk should have disqualified 4,248 (or 23. 34%) ofthe Committee's petition
8
signatures that were submitted without the petition signers' ward number. Thus, the
9
plaintiffs are entitled to declaratory andinjunctive reliefproviding that these signatures
10
are invalid, and the Committee's motion to dismiss as to Count 7, paragraph 97 of the
11
initial complaint must be denied.
12
IV. CONCLUSION
13
For the forgoing reasons, the plaintiffs respectfully request the Court deny the
14
Committee's partial motion to dismiss, in toto.
15
RESPECTFULLY SUBMITTED this 2nd day of August, 2019.
16
17
18 GER CHADWICK, P. L. C.
John G. Anderson
19
" Zachary L. Cohen
20 Attorneys for Plaintiffs

21

22

23 Original of the foregoing filed with the Clerk

Of the Court and a copy emailed and mailed to:
24

25 Daniel Jurkowitz
Deputy County Attorney
26 Pima County Attorney Civil Division
32 North Stone Ave., Suite 2100
27
Tucson, AZ 85701
28 Daniel.Jurkowitz cao. ima. ov

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 1
Dennis P. McLaughlin
Jennifer Stash
2
Tucson City Attorney's Office
3 P. O. Box 27120
Tucson, AZ 85726-7210
4
Dennis.McLau hlin tucsonaz. ov
5 Jeimifer.stash Uicsonaz. ov

6 Paul Gattone
301 South Convent Avenue
7
Tucson, AZ 85701
8 GattoneCivilRi htsLaw mail. com

10 By:
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