                    SUPREME COURT OF ARIZONA
                             En Banc

JOHN L. POWERS, an individual    )     Arizona Supreme Court
and qualified elector,           )     No. CV-02-0221-AP/EL
                                 )
        Plaintiff/Appellee,      )     Maricopa County
                                 )     Superior Court
v.                               )     No. CV 2002-012155
                                 )
                                 )     MEMORANDUM DECISION
JOHN M. CARPENTER, an            )     (Not for Publication -
individual, SALOMON LEIJA, an    )     Rule 111, Rules of the
individual, STEPHEN VEGA, an     )     Arizona Supreme Court
individual, Real Party in        )
Interest, THE HONORABLE R.       )
FULTON BROCK, DON STAPLEY,       )
ANDREW KUNASEK, MAX W. WILSON,   )
MARY ROSE WILCOX, THE DULY       )
ELECTED OR APPOINTED MEMBERS OF )
THE MARICOPA COUNTY BOARD OF     )
SUPERVISORS, WHO ARE NAMED       )
SOLELY IN THEIR OFFICIAL         )
CAPACITY; THE MARICOPA COUNTY    )
BOARD OF SUPERVISORS; THE        )
HONORABLE HELEN PURCELL, THE     )
DULY ELECTED MARICOPA COUNTY     )
RECORDER, WHO IS NAMED SOLELY IN )
HER OFFICIAL CAPACITY, AND THE   )
HONORABLE KAREN OSBORNE, THE     )
DULY APPOINTED MARICOPA COUNTY   )
DIRECTOR OF ELECTIONS, WHO IS    )
SOLELY NAMED IN HER OFFICIAL     )
CAPACITY; THE HONORABLE BETSEY   )
BAYLESS; THE DULY ELECTED        )
ARIZONA SECRETARY OF STATE IN    )
HER OFFICIAL CAPACITY,           )
                                 )
        Defendants/Appellants.   )
                                 )



        Appeal from the Superior Court of Maricopa County
                The Honorable Paul A. Katz, Judge

                            AFFIRMED
WILLIAMS & ASSOCIATES                                   Scottsdale
     By   Scott E. Williams
          and
LAW OFFICE OF ROBERT E. MELTON                          Scottsdale
     By   Robert E. Melton
Attorneys for Plaintiff-Appellee

LAW OFFICE OF RAFAEL CONTRERAS                             Phoenix
     By   Rafael Contreras
Attorney for Defendant-Appellant Leija

RICHARD M. ROMLEY, MARICOPA COUNTY ATTORNEY                 Phoenix
     By   Jill M. Kennedy, Deputy County Attorney
Attorneys for Defendants-Appellants the Honorable R. Fulton Brock,
Don Stapley, Andrew Kunasek, Max Wilson, Mary Rose Wilcox, Maricopa
County Board of Supervisors, the Honorable Helen Purcell, and the
Honorable Karen Osborne.

R Y A N, Justice

¶1        Salomon Leija filed nominating petitions to have his

name appear on the Democratic primary ballot as a candidate for the

office of Maricopa County Constable, East Phoenix #1 Precinct.

John Powers brought an action in the trial court against Leija and

several others, challenging Leija’s candidacy on the grounds that

Leija did not reside in the precinct.

¶2        The trial court held an evidentiary hearing after which

it found the following.   In May 2002 Leija and his wife moved from

their three-bedroom west Phoenix home and signed a six-month lease

on a small studio apartment in the East Phoenix #1 Precinct.   Leija

obtained a driver’s license and changed his voter registration card

using the new address.    Both Leija and his wife had lived in the

apartment since May, and were renting their house in west Phoenix


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to family members for well below the fair market value.                     The

majority    of    their   furniture,      clothes   and   personal   belongings

remained in their west Phoenix home, and the “cramped” apartment

had “minimal bare bones furnishings.”               Leija did not change his

mailing address with his bank or creditors and most of the accounts

for the home’s utility services remained in the couple’s names.

¶3          The trial court concluded, by a preponderance of the

evidence, that Leija did not move to the apartment with an intent

to stay for an indefinite time.              The court determined that the

reason for the move was so Leija could run for office and that if

he lost the election, he would move back to his home in west

Phoenix.         The   court   enjoined    the   Maricopa   County   Elections

Department and the Secretary of State from placing Leija on the

Democratic primary ballot.         Leija then appealed to this court, and

we have jurisdiction under Arizona Revised Statutes (“A.R.S.”)

section 16-351(A) (Supp. 2001).            In a previous order, we affirmed

the trial court with a written decision to follow.               This is that

decision.

¶4          Leija contends that the trial court erred by applying a

preponderance of the evidence standard instead of a clear and

convincing evidence standard.          Leija concedes that he was aware of

the standard of proof the trial court applied at the evidentiary

hearing, and admits that he did not properly raise the issue below.

He maintains, however, that this court should consider the issue on


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the   merits    because   it   is   a   matter   of   statewide   importance.

Substantively, Leija asserts that his voter registration card with

the new address raised the presumption that he is a resident of

East Phoenix #1 Precinct.       He argues that the presumption can only

be rebutted by clear and convincing evidence under A.R.S. § 16-

121.01(B) (1996) and McDowell Mountain Ranch Land Coalition v.

Vizcaino, 190 Ariz. 1, 945 P.2d 312 (1997).

¶5           The failure to raise an error at the trial court level

constitutes a waiver of that argument if brought for the first time

on appeal.     See Trantor v. Fredrikson, 179 Ariz. 299, 300, 878 P.2d

657, 658 (1994).          But even if Leija had not waived the issue

concerning the standard of proof, the trial court did not err in

applying a preponderance of the evidence standard.                Section 16-

121.01 applies only to whether a citizen is properly registered to

vote, not to a challenge of a candidate’s residency in a precinct.

When applicable, that statute requires a clear and convincing

standard of proof.         A.R.S. § 16-121.01(B).         McDowell Mountain

applied that standard in a challenge involving whether petition

circulators were qualified electors, a requirement for petition

circulators under A.R.S. § 19-114(A) (2002).            190 Ariz. at 4, 945

P.2d at 315.

¶6           Such a standard of proof does not apply here for the

following reasons.        First, the requirements for candidates for

public office are governed by A.R.S. § 16-311(A) (Supp. 2001).             It


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states    in    part   that    candidates    “shall   reside   in   the   county,

district or precinct which the person proposes to represent.”                 And

A.R.S. § 16-101 (1996) defines residency for the purposes of Title

16 as “actual physical presence in the political subdivision,

combined with an intent to remain.”            A.R.S. § 16-101(B).        Second,

unlike § 16-121.01, A.R.S. § 16-311(A) is silent as to the required

standard of proof.            Third, the issue here does not concern an

individual’s      constitutionally      protected     right    to   vote.     See

Reynolds v. Sims, 377 U.S. 533, 562 (1964) (recognizing the right

to vote as fundamental, subject to strict scrutiny).                There is no

analogous constitutional right to qualify and run for office.                 See

Bullock v. Carter, 405 U.S. 134, 142-43 (1972) (refusing to apply

strict scrutiny analysis to barriers to candidate access to primary

ballot).       Therefore, we hold that the standard of proof to be

applied in determining whether a candidate resides in the political

subdivision which he or she proposes to represent is preponderance

of the evidence.

¶7             We will sustain the findings of the trial court if the

record contains substantial evidence to support the trial court’s

action.    In re Estate of Pouser, 193 Ariz. 574, 579, ¶ 13, 975 P.2d

704, 709 (1999).        Substantial evidence supports the trial court’s

finding that Leija did not intend to remain in the East Phoenix #1

Precinct unless he won the election.

¶8             Accordingly, we affirm the trial court’s order enjoining


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the Maricopa County Elections Department and the Secretary of State

from placing Leija’s name on the Democratic primary ballot.




                                        Michael D. Ryan, Justice
CONCURRING:




Charles E. Jones, Chief Justice




Ruth V. McGregor, Vice Chief Justice




Stanley G. Feldman, Justice



(Note:   Justice Rebecca White Berch did not participate in the
determination of this matter.)




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