                       SUPREME COURT OF ARIZONA
                                En Banc

FRANKLIN BRUCE ROSS,                )   Arizona Supreme Court
                                    )   No. CV-11-0264-T/AP
           Petitioner/Appellant,    )
                                    )   Court of Appeals
                v.                  )   Division One
                                    )   No. 1 CA-CV 11-0503 EL
KEN BENNETT, in his official        )
capacity as Secretary of State      )   Maricopa County
for the State of Arizona; THE       )   Superior Court
BOARD OF SUPERVISORS OF MARICOPA    )   No. CV2011-011864
COUNTY; HELEN PURCELL, in her       )
official capacity as Maricopa       )
County Recorder; and KAREN          )
OSBORNE, in her official            )   O P I N I O N
capacity as Maricopa County         )
Elections Director,                 )
                                    )
          Respondents/Appellees,    )
                                    )
and                                 )
                                    )
CITIZENS FOR A BETTER ARIZONA IN    )
SUPPORT OF RC-04-2011,              )
                                    )
          Real Party in Interest/   )
                        Appellee.   )
_________________________________   )

        Appeal from the Superior Court in Maricopa County
                The Honorable Hugh E. Hegyi, Judge

                            AFFIRMED
________________________________________________________________

          Appeal to the Court of Appeals, Division One

                           TRANSFERRED
________________________________________________________________

GAMMAGE & BURNHAM, P.L.C.                                   Phoenix
     By   Lisa T. Hauser
Attorneys for Franklin Bruce Ross
THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL                 Phoenix
     By   James E. Barton, II, Assistant Attorney General
          Thomas M. Collins, Assistant Attorney General
Attorneys for Ken Bennett

WILLIAM G. MONTGOMERY, MARICOPA COUNTY ATTORNEY                        Phoenix
     By   M. Colleen Connor, Deputy County Attorney
          J. Scott Dutcher, Deputy County Attorney
Attorneys for Maricopa County Board of Supervisors,
Helen Purcell, and Karen Osborne

LAW OFFICE OF THOMAS M. RYAN                            Chandler
     By   Thomas M. Ryan
Attorney for Citizens for a Better Arizona in
Support of RC-04-2011
________________________________________________________________

B E R C H, Chief Justice

¶1         On July 12, 2011, Governor Janice K. Brewer ordered a

special election for the recall of State Senator Russell Pearce.

On September 13, 2011, this Court affirmed the trial court’s

order refusing to enjoin the election.                 This opinion explains

our earlier order.

                    I.   FACTS AND PROCEDURAL BACKGROUND

¶2         On January 31, 2011, Citizens for a Better Arizona

(“CBA”) filed an application with Secretary of State Ken Bennett

seeking   to   recall     Senator   Pearce,    who    represents    Legislative

District 18 in the Arizona Senate.

¶3         CBA eventually submitted a recall petition containing

18,315 signatures for certification.                 Secretary Bennett found

1,381 signatures ineligible and submitted the remaining 16,934

signatures     to    Maricopa   County       Recorder    Helen     Purcell   for

                                     - 2 -
certification.        She,    in      turn,      struck    an   additional        6,569

signatures    and    transmitted           the   remaining      10,365     certified

signatures to Secretary Bennett.                   After determining that the

recall   petition     contained          more    signatures      than     the     7,756

required,    Secretary       Bennett        filed    the     petition      with     the

Governor’s office.1      On July 12, 2011, Governor Brewer ordered a

special recall election for November 8, 2011.

¶4          Six days after the Governor’s order, Franklin Bruce

Ross, a District 18 elector, filed suit to enjoin the recall

election,    alleging    that      the     recall    petition     failed    to    meet

constitutional and statutory requirements.                      After considering

the   defendants’    motions     to      dismiss    the    complaint      and   Ross’s

motion for partial summary judgment, the superior court entered

judgment for the defendants.

¶5          Ross appealed.         We granted the parties’ requests to

transfer the case from the court of appeals because Ross seeks

the overruling of an opinion of this Court.                     See ARCAP 19.        We

have jurisdiction pursuant to Article 6, Section 5, Clause 3, of

the Arizona Constitution.

                                II.      DISCUSSION

¶6          The     resolution        of     this     case      depends     on     the

interpretation of constitutional and statutory provisions, which

1
     On July 18, 2011, County Recorder Purcell issued a revised
certification that reduced the number of valid signatures to
10,296, still far exceeding the 7,756 required for the recall.
                                         - 3 -
are issues of law that we review de novo.                         Duncan v. Scottsdale

Med. Imaging, Ltd., 205 Ariz. 306, 308 ¶ 2, 70 P.3d 435, 437

(2003).

        A.     The Public’s Right to Recall

¶7             The    Arizona      Constitution        guarantees       the    people      the

right    to    recall       public    officers        who    hold   elective        offices.

Ariz. Const. art. 8, pt. 1, § 1.                     Although the recall procedure

has been used rarely, recall was an important issue during the

Constitutional         Convention       of    1910.         See   The   Records      of    the

Arizona Constitutional Convention of 1910 [hereinafter Records]

241-46, 259-70, 802-12, 919-22, 925-29 (John Goff ed., 1991).

Sentiment       favoring       recall      was   so     strong      that      the    framers

included in the constitution a recall provision for all public

officers, despite well-placed fears that President Taft would

not approve statehood if the recall provision applied to the

judiciary.           See id. at 920, 926, 1418; Letter from President

William H. Taft to the U.S. H.R. (Aug. 15, 1911) (reprinted in

Toni McClory, Understanding the Arizona Constitution 193-99 (2d

ed. 2010)).          The President eventually approved Arizona’s bid for

statehood, but only on the condition that the framers exempt

judges       from     the    recall     provision.            Letter     to    U.S.       H.R.

Arizonans acquiesced to the President’s request, but less than

one     year    later,        they    overwhelmingly          voted     to     amend       the

constitution         to     once   again     subject        all   public      officers      to

                                             - 4 -
recall.       See Ariz. Const. art. 8, pt. 1, § 1.                 This broad recall

provision remains in force today.                        Id.; see also Ariz. Rev.

Stat.        (“A.R.S.”)       §     19-201(A)      (Supp.     2011)       (implementing

constitutional recall provision).

¶8             Given     this      history,       this     Court    has     interpreted

constitutional          and       statutory       provisions       governing    recall

liberally to protect the public’s right to recall its officials.

See Pacuilla v. Cochise Cnty. Bd. of Supervisors, 186 Ariz. 367,

368, 923 P.2d 833, 834 (1996); Johnson v. Maehling, 123 Ariz.

15, 18, 597 P.2d 1, 4 (1979); Abbey v. Green, 28 Ariz. 53, 72-

74, 235 P. 150, 157 (1925).

        B.     CBA’s Recall Petition

¶9             Ross argues that CBA’s recall petition fails to satisfy

the     constitutional        and    statutory       requirements     governing    the

recall process.         We address each of Ross’s arguments in turn.

               1.      The “substantial compliance” standard

¶10            To be eligible for certification, recall petitions must

“substantially         comply”      with    the    constitutional     and    statutory

framework.          This Court first announced this standard in 1925 in

Abbey v. Green, 28 Ariz. at 74, 235 P. at 157.                      Ross urges us to

abandon Abbey and reject its 86-year-old substantial compliance

standard       in    favor    of    the    “strict    compliance”     standard    more

recently applied to referendum petitions.                      See W. Devcor, Inc.

v. City of Scottsdale, 168 Ariz. 426, 428, 814 P.2d 767, 769

                                           - 5 -
(1991); Cottonwood Dev. v. Foothills Area Coal. of Tucson, Inc.,

134 Ariz. 46, 49, 653 P.2d 694, 697 (1982).                                 We decline the

invitation.

¶11         In Abbey, a superior court judge sought to set aside a

recall election removing him from office, on the grounds that

the    recall    petition       failed     to     comply      with    several     statutory

provisions.        28    Ariz.      at    62,     235    P.     at   153.      Although    we

concluded       that     the      petition        suffered       from    some     technical

deficiencies, we nonetheless found it “in substantial compliance

with the law” and upheld the election.                           Id. at 74, 235 P. at

157.

¶12         Among       other     things,        the    judge    complained      that    some

petition    signers          did     not        list     full        addresses,       despite

constitutional and statutory mandates that each signer list a

“residence.”           Id.   at    63,    235     P.    at    154.      We    found    strict

compliance unnecessary because several towns did not use house

numbers    at    that    time.           Id.      The    residence      requirement       was

imposed to help the county recorder identify petition signers.

Because the recorder could otherwise identify signers, we found

no reason to invalidate the signatures for not listing house

numbers.    Id. at 63-64, 235 P. at 154.

¶13         We also rejected the judge’s claim that the petition

was defective because each petition sheet did not include a

statement of the grounds for recall.                      Id. at 62, 235 P. at 153.

                                               - 6 -
Because the constitution contemplates multiple petition sheets,

see Ariz. Const. art. 8, pt. 1, § 2, and the petition stated

grounds on at least one sheet, we concluded that restating it on

each sheet was unnecessary, Abbey, 28 Ariz. at 62, 235 P. at

153.

¶14         Finally, we rejected the judge’s claim that the stated

grounds for recall were “scandalous and impertinent.”                              Id. at

57, 235 P. at 152.               We observed that the recall process was

political     –    not     judicial      –     and     it     was   the     electorate’s

prerogative       to    remove    an   “officer      with     whom,   for    any   or   no

reason   whatever         for     that       matter,        they    may   have     become

displeased.”           Id. at 63, 235 P. at 154 (citations omitted).

Because the constitution and recall statutes did not require any

allegation of “misfeasance or malfeasance,” the stated grounds

for removal may be “very general in their nature and character.”

Id.

¶15         Abbey embraced the populist themes that gave rise to

recall in Arizona and recognized that the benefit of the recall

process accrues to the people, not the targeted office holder.

We have since reaffirmed that view and committed ourselves to

liberally construing both constitutional and statutory recall

provisions.       See, e.g., Johnson, 123 Ariz. at 18, 597 P.2d at 4

(“The [petition] procedure is not intended to protect incumbents

from being ousted by dissatisfied voters.”); id. (“Since the

                                         - 7 -
provision    is      for   the   benefit    of    the   public      rather    than    the

officials,      we     construe    the     language     liberally      in    favor     of

permitting recall elections.”); Miller v. Wilson, 59 Ariz. 403,

409-10, 129 P.2d 668, 671-72 (liberally construing Article 8 of

the   Arizona     Constitution      to     permit    the     same   body     with    whom

recall petitions are filed to canvass and declare the result of

the   recall      election).        The     substantial       compliance      standard

embodies this commitment.

¶16         Ross urges us to overrule Abbey and its progeny and

abandon the substantial compliance test in favor of the strict

compliance standard first applied to a referendum in Cottonwood

Development v. Foothills Area Coalition of Tucson, Inc., 134

Ariz. 46, 49, 653 P.2d 694, 697 (1982).                      Cottonwood involved a

petition to refer a county zoning resolution to the voters.                           Id.

at 48, 653 P.2d at 696.              Despite constitutional and statutory

provisions requiring that a copy of the referred legislation

accompany the petition, the petition failed to include one.                           Id.

at 49, 653 P.2d at 697.

¶17         In finding the petition insufficient, we noted that a

successful referendum undermines the majority will by suspending

application       of   the   referred      statute      or   ordinance       until    the

affected electorate can vote on its continued validity at the

next general election.            Id. at 48, 49, 653 P.2d at 696, 697; see

also Ariz. Const. art. 4, pt. 1, § 1(3) (requiring signatures

                                          - 8 -
from only five percent of the voters).              Thus, a referendum gives

a “small minority of the voters . . . the power to suspend

legislation enacted by the duly elected representatives of the

people, legislation that could be supported by a majority of the

electors at the subsequent referendum election.”                         Cottonwood,

134 Ariz. at 48, 653 P.2d at 697 (citation omitted).

¶18        We therefore cautioned that “[w]here a power so great

as the suspension of an ordinance or of a law is vested in a

minority, the safeguards provided by law against its irregular

or fraudulent exercise should be carefully maintained.”                        Id. at

48-49, 653 P.2d at 696-97 (internal quotations omitted).

¶19        Ross argues that, like a referendum, a recall permits a

minority to potentially thwart the will of the majority.                            He

further   claims    that     because     the    framers    were    concerned     with

fraud and abuse in both recalls and referenda, we should apply

the same test to both types of cases.               This reasoning, however,

is faulty for at least two reasons.

¶20        First,        unlike   the    referendum       process,       the   recall

process   does     not    allow   a     minority   of     voters    to    suspend    a

decision supported by the majority.                Rather, in a recall, the

incumbent continues to serve in office until the issue goes

before the affected electorate for a full vote.                      Ariz. Const.

art. 8, pt. 1, § 3; A.R.S. § 19-216(B) (2002).                     If the official

wins the recall election, his term in office is not interrupted.

                                        - 9 -
Ariz. Const. art. 8, pt. 1, § 3; A.R.S. § 19-216(A).                               Moreover,

although a referendum petition requires signatures by only five

percent of electors, Ariz. Const. art. 4, pt. 1, § 1(3), a

successful recall petition requires the signatures of twenty-

five   percent    of    electors,        id.       art.    8,     pt.    1,   §    1.      Our

constitution and statutes thus already protect against abuse of

the recall process.2

¶21        Second,          abandoning        Abbey       would      fail     to     respect

Arizona’s strong devotion to recall as a progressive process

intended   “for       the    benefit     of     the       public        rather     than   the

officials.”       Johnson, 123 Ariz. at 18, 597 P.2d at 4.                                 The

public has a constitutional right to recall elected officers for

“misfeasance     or    malfeasance        .    .    .     or    no   reason       whatever.”

Abbey, 28 Ariz. at 63, 235 P. at 154.                           The delegates to the

Constitutional Convention of 1910 were willing to risk statehood

over a robust recall system that subjected every official to

removal.      See Records, supra ¶ 7, at 920, 926.                                Adopting a

standard that makes it more difficult for the public to remove

its own officers would frustrate this historical intent.                                Seeing

no reason to abandon 86 years of precedent and 100 years of



2
     The legislature imposed additional protections against
abuse of the recall system when it adopted A.R.S. § 19-208.02
(2002), which requires a second round of signature certification
by the county recorder.    See 1973 Ariz. Sess. Laws, ch. 159,
§ 17 (1st Reg. Sess.).
                                         - 10 -
commitment to popular recall, we reaffirm our support of Abbey’s

substantial compliance standard.

            2.        The “genuineness” requirement

¶22         Ross next contends that the oath subscribed by the

petition circulators was deficient.                The constitution requires

circulators of recall petitions to “subscribe an oath . . . that

the signatures thereon are genuine.”               Ariz. Const. art. 8, pt.

1, § 2.     A statute also requires each circulator to sign “an

affidavit . . . verify[ing] that each of the names on the sheet

was signed in his presence on the date indicated, and that in

his belief each signer was a qualified elector of the election

district on the date indicated in which such recall election

will be conducted.”          A.R.S. § 19-205(B) (2002).

¶23         The petition in this case substantially complied with

these requirements.           The circulator of each petition signed an

affidavit that he or she “believe[d] that each signer’s name and

residence address or post office address [we]re correctly stated

and that each signer [wa]s a qualified elector of the state of

Arizona.”        As    the   trial    judge   observed,        this   oath    is   the

substantial      equivalent      of    avowing     the    genuineness         of    the

signatures.

¶24         Although      the   affirmation      does    not    include      the   word

“genuine,” that omission is not determinative.                   The constitution

does not require any particular form of oath.                         Ariz. Const.

                                       - 11 -
art. 8, pt. 1, § 2.           Instead, the implementing statute sets

forth the contents of the oath, see A.R.S. § 19-205(B),3 which

the affidavit in this case tracks nearly identically, including

an   affirmation      that   the   signers’   names    and    addresses   were

written    in   the    circulator’s     presence      and    were    “correctly

stated.”        This     satisfies     the    constitution’s        genuineness

requirement.4      Requiring anything more than affirmation that the

circulator believed that the signers were qualified electors and

that they signed in his presence would frustrate rather than

promote the public’s right to recall.            See Pacuilla, 186 Ariz.

at 368, 923 P.2d at 834.

3
     A.R.S. § 19-205(B) provides as follows:
     The person before whom the signatures were written on
     the signature sheet shall in an affidavit subscribed
     and sworn to by him before a notary public verify that
     each of the names on the sheet was signed in his
     presence on the date indicated, and that in his belief
     each signer was a qualified elector of the election
     district on the date indicated in which such recall
     election will be conducted.
Moreover, each signature must be made in the circulator’s
presence. Id. § 19-205(A).
4
     Other than checking birth certificates, social security
cards, state-issued driver’s licenses, and voter registration
cards, it is difficult to conceive how a circulator might verify
that a signature is “genuine” under Ross’s definition.       The
framers apparently recognized this problem.      The originally
proposed language of Article 8, Part 1, Section 2, required the
circulator to affirm that “the statements therein made are true,
and that the signatures are genuine.”    Records, supra ¶ 7, at
1089 (emphasis added).    The framers amended this section to
remove the italicized language after Donnell Cunningham of
Cochise County commented that he “cannot see how this can be an
operative measure.” Id. at 261.


                                     - 12 -
              3.      The circulator’s oath

¶25           Ross     makes     two     related     arguments      regarding       the

circulator’s         oath.      First,    he    contends    that     the    oath    was

deficient because it was the same oath used for initiatives and

referenda, whereas the constitutional drafters intended that the

oath for recall be different.               See Records, supra ¶ 7, at 269;

A.R.S.    §   19-205(C)      (requiring     additional      language       for   recall

oath).    Ross may be correct that the founders initially intended

different oaths,5 but the constitution itself does not contain

this    requirement      and    the    legislature    has    since    resolved     the

issue    by   requiring        additional      averments    for    initiatives      and

referenda, making the oaths the same.

¶26           The     constitution        mandates     that        circulators       of

initiatives and referenda swear that “each of the names on said

sheet was signed in the presence of the affiant and that in the

belief of the affiant each signer was a qualified elector of the

State.”       Ariz. Const. art. 4, pt. 1, § 9.                This is the “form

prescribed for initiative and referendum.”                        See A.R.S. § 19-

205(C) (relating to recall); see also id. § 19-112(C) (Supp.

2011)     (requiring           substantially       similar        statements        for

initiatives and referenda).

5
     During the constitutional debates, one of the framers
suggested that the oath requirement for the recall petitions
“simply refer[] to the form of petition required in the
initiative and referendum.”   Records, supra ¶ 7, at 269. The
framers rejected this amendment. Id.
                                         - 13 -
¶27        The   petition     at    issue    here    contains      not    only   the

statements    required       by    the    constitution       and    statute      for

initiatives   and   referenda,      but     also    an   additional      statement.

The circulator’s affidavit read as follows:

       I . . . depose and say that each individual signed
       this sheet of the foregoing petition in my presence on
       the date indicated, and I believe that each signer’s
       name and residence address or post office address are
       correctly stated and that each signer is a qualified
       elector of the state of Arizona . . . .

Therefore, the circulator’s oath contains language in addition

to that constitutionally mandated for referenda and initiative

circulators and so not only complies with the constitution, but

also satisfies Ross’s “additional language” test.6

¶28        Second, Ross argues that the oath failed to satisfy

§ 19-205(B) because the circulators’ affidavits did not affirm

that   each   signer   was    a    “qualified      elector    of   the     election

district.”    We disagree.

¶29        Each circulator must swear or affirm to a belief that

“each signer was a qualified elector of the election district on

6
     The difference between the initiative and referendum oath
and the recall oath was intended to be that a recall petition
circulator, in addition to the avowals set forth in the
constitution and statutes, had to avow that “the circulator
believes that the circulator is qualified to register to vote
and all signers [of the petition] are qualified to vote in the
recall election.” A.R.S. § 19-205(C). That language has since
been incorporated in the affidavit that is now statutorily
required by A.R.S. § 19-112(D) for circulators of initiatives
and referenda. The legislature has the power to determine that
the oath for initiatives and referenda should include more
avowals than the constitutional minimum.
                                     - 14 -
the     date    indicated   in    which     such    recall       election   will    be

conducted,” A.R.S. § 19-205(B), and that all “signers [of the

petition] are qualified to vote in the recall election,” id.

§ 19-205(B).

¶30            On each signature sheet here, the circulator swore his

or her belief that each signer was “qualified to vote in the

recall election.”        This statement follows the language in § 19-

205(C) identically and is the functional equivalent of saying

the signer is a qualified elector of the electoral district.7

Moreover, the top-front of each sheet included the language,

“We, the qualified electors of the electoral district from which

State    Senator     Pearce,     District    18,     was   elected,     demand     his

recall.”        The grounds for recall are prefaced by the statement,

“We, Citizens for a Better Arizona and residents of District 18,

submit this petition . . . .”             This language, combined with the

language in the affidavit itself, dispels any confusion about

who could sign the petition and clarifies that only qualified

electors of District 18 could sign.                  See Feldmeier v. Watson,

211     Ariz.     444,   449,    123    P.3d       180,    185    (2005)    (finding


7
     Not only does the oath track § 19-205(C), it is also the
same language the secretary of state uses on the sample recall
petition forms available to the public.      Although compliance
with a government-supplied sample form does not guarantee
validity, see W. Devcor, 168 Ariz. at 430-32, 814 P.2d at 770-
72, we do find such compliance persuasive in the recall context
when the language of the sample form substantially complies with
constitutional and statutory requirements.
                                       - 15 -
substantial compliance with initiative petition in Prescott that

referred to “qualified electors of the state of Arizona”).                     The

petition sheets substantially comply with § 19-205(B) and (C).

            4.     Adequacy of grounds for recall

¶31         “Every     recall     petition     must     contain       a     general

statement, in not more than two hundred words, of the grounds of

such demand.”       Ariz. Const. art. 8, pt. 1, § 2; see also A.R.S.

§ 19-203(A) (Supp. 2011).         Each sheet of CBA’s petition included

the following grounds for recall:

      We, Citizens for a Better Arizona and residents of
      District 18, submit this petition to recall State
      Senator Russell Pearce for his failure to focus on
      issues and concerns that affect all Arizonans.    Mesa
      and Arizona need a leader who will pass laws to create
      jobs, protect public education and ensure access to
      health care for our children and those most in need.
      We deserve a representative that reflects our values,
      beliefs and vision for Mesa and all of Arizona.     By
      signing this petition we publicly withdraw our support
      for Russell Pearce and what he represents.

¶32         Ross     complains    that   the    final    sentence         in   this

paragraph    violates    the     constitution    and    A.R.S.    §       19-203(A)

because it does not state a specific ground for recall and thus

is misleading.        As we stated in Abbey, however, the “evident

purpose [of the recall is] to permit the electorate to get rid

of an . . . officer with whom, for any or no reason whatever for

that matter, they have become displeased.”              28 Ariz. at 63, 235

P. at 154.       Therefore, “[t]he grounds or reasons assigned in the



                                    - 16 -
petition for the recall may be very general in their nature and

character.”       Id.

¶33         Voters may attempt to remove an officer for whatever

reasons they choose and this “general statement,” taken as a

whole,     clearly      communicates       reasons     for    seeking    removal   of

Senator Pearce.          Moreover, the final sentence has no potential

to mislead voters, as several other portions of the petition

clarify that the purpose of signing is to recall the senator.

The petition’s statement of grounds substantially complies with

A.R.S. § 19-203(A) and Article 8, Part 1, Section 2 of the

Arizona Constitution.

             5.      Striking entire petition sheets for individually
                     deficient signatures

¶34         Petition sheets bearing false or fraudulent circulator

affidavits are void.             See Brousseau v. Fitzgerald, 138 Ariz.

453, 456, 675 P.2d 713, 716 (1984).                  Ross argues that this rule

requires us to strike several signature sheets from CBA’s recall

petition     because       the     county       recorder      could     not   certify

individual        signatures      on   them,       rendering      the   circulator’s

affidavit “false.”          If, he argues, the county recorder could not

match a voter registration signature to a petition signature, it

must mean that “the circulator did not truly witness the name of

each     petition       being    signed    as      stated    in   the   circulator’s

affidavit.”       Once again, we are not convinced.


                                          - 17 -
¶35          In     Brousseau,     minors        and     unqualified       electors

circulated petitions, and individuals who had not circulated any

petition signed the circulator’s affidavit.                   138 Ariz. at 454,

675   P.2d    at    714.     Although     the    county      recorder   ultimately

verified most of the signatures, the Court struck the petitions,

finding    that     their   fraudulent     circulation       tainted    the    entire

process.     Id. at 456, 675 P.2d at 716.

¶36          Ross misreads Brousseau to stand for the proposition

that the Court should disqualify all petitions with affidavits

based on any false information, and he finds falsity here in the

fact that the secretary of state and county recorder could not

verify every signature.            His reading ignores the distinction

between      mere   “omissions     or    irregularities”        –   such      as   the

inability to read a signer’s handwriting or a signer’s innocent

mistake about his or her voting district – on the one hand, and

true fraud by petition circulators on the other.                    Id. at 455-56,

675 P.2d at 715-16 (citing Lombardi v. State Bd. of Elections,

386 N.Y.S.2d 718 (N.Y. App. Div. 1976) (invalidating two sheets

“permeated with fraud”); Weisberger v. Cohen, 22 N.Y.S.2d 1011,

1012 (N.Y. Sup. Ct.), aff’d, 22 N.Y.S.2d 835 (N.Y. App. Div.

1940) (invalidating petition sheets rife with fraud)).

¶37          The signature sheets may contain some signatures from

electors who are not qualified to vote in the recall election.

But   Ross    presented     no   evidence    that      the   circulator    obtained

                                        - 18 -
those signatures by fraud or that the circulator’s oath was

itself fraudulent.         Fraud requires an element of knowledge – a

guilty mental state.          See Smith v. Pinner, 68 Ariz. 115, 122,

201 P.2d 741, 745 (1949).               Ross provided no evidence that the

circulators in this case knew that the signatures were invalid

or that their affidavits were false.                     This case does not fall

within the ambit of Brousseau and we will not strike entire

petitions simply because they contain individually disqualified

signatures.        See Harris v. City of Bisbee, 219 Ariz. 36, 43

¶ 23, 192 P.3d 162, 169 (App. 2008) (noting that “excluding all

signatures on a signature sheet is appropriate only when an

affidavit     is    defective     and    the        presumptive     validity     of   the

affected signatures has not been restored or when . . . the

affidavit is false”).

       C.    Transient Voters

¶38          In    addition      to     his     constitutional           and   statutory

challenges, Ross argues that the petition improperly included

471 signatures from voters who lived in Legislative District 18

when they signed the petition, but were registered to vote in

another district.         He asks us to overrule Pacuilla, 186 Ariz. at

369,   923   P.2d    at   835,    and     hold       that   these    voters     are   not

“qualified    electors.”         Given        our    resolution     of    Ross’s   other

challenges, the disposition of these 471 signatures is moot.

The parties agree that the final certification yielded 10,296

                                        - 19 -
valid signatures and that only 7,756 were required to compel an

election.         Thus     even     if    Ross’s         challenge       on    this      issue

prevailed, the petition would still contain 9,825 signatures,

2,069    more    than     necessary       to    move     forward        with    the   recall

election.

        D.     Attorneys’ Fees

¶39            Ross    seeks    attorneys’        fees    pursuant       to    the    private

attorney general doctrine.               See Arnold v. Ariz. Dep’t of Health

Servs., 160 Ariz. 593, 609, 775 P.2d 521, 537 (1989).                                 Because

Ross     has    not     prevailed,       however,        he   is    not       eligible    for

attorneys’ fees.          Id.

                                  III.    DISPOSITION

¶40            CBA’s     petition     for      the     recall      of     Senator     Pearce

substantially          complies   with      the      constitutional        and    statutory

requirements.           We therefore affirm the judgment of the trial

court.



                                    _____________________________________
                                    Rebecca White Berch, Chief Justice


CONCURRING:


_____________________________________
Andrew D. Hurwitz, Vice Chief Justice


_____________________________________
W. Scott Bales, Justice

                                          - 20 -
_____________________________________
A. John Pelander, Justice


_____________________________________
Robert M. Brutinel, Justice




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