                    SUPREME COURT OF ARIZONA
                           In Division


BAHNEY DEDOLPH,                   )   Arizona Supreme Court
                                  )   No. CV-12-0226-AP/EL
              Plaintiff/Appellee, )
                                  )   Maricopa County
                 v.               )   Superior Court
                                  )   No. CV2012-009302
LOIS JEAN McDERMOTT, Democratic   )
Primary Candidate for Arizona     )
House of Representatives,         )
Legislative District 24; KEN      )     O P I N I O N
BENNETT, Secretary of State;      )
HELEN PURCELL, Maricopa County    )
Recorder; KAREN OSBORNE,          )
Maricopa County Director of       )
Elections; FULTON BROCK,          )
Maricopa County Supervisor;       )
DON STAPLEY, Maricopa County      )
Supervisor; ANDY KUNASEK,         )
Maricopa County Supervisor;       )
MAX WILSON, Maricopa County       )
Supervisor; MARY ROSE WILCOX,     )
Maricopa County Supervisor,       )
                                  )
           Defendants/Appellants. )
                                  )
__________________________________)

        Appeal from the Superior Court in Maricopa County
             The Honorable Arthur T. Anderson, Judge

               AFFIRMED IN PART, REVERSED IN PART
________________________________________________________________

COPPERSMITH SCHERMER & BROCKELMAN PLC                       Phoenix
     By   Andrew S. Gordon
          Roopali H. Desai
Attorneys for Bahney Dedolph

SNELL & WILMER, L.L.P.                                      Phoenix
     By   Kory A. Langhofer
          Ian M. Fischer
Attorneys for Lois Jean McDermott
THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL                                                Phoenix
     By   Michele L. Forney, Assistant Attorney General
Attorney for Ken Bennett

WILLIAM G. MONTGOMERY, MARICOPA COUNTY ATTORNEY           Phoenix
     By   M. Colleen Connor
          J. Kenneth Mangum
Attorneys for Helen Purcell, Karen Osborne, Fulton Brock,
Donald T. Stapley, Jr., Andrew Kunasek, Max Wilson, and
Mary Rose Wilcox

_______________________________________________________________

B A L E S, Vice Chief Justice

¶1            This case concerns a challenge to the nomination of

Lois   Jean       McDermott,     a   Democratic       candidate          for       the   Arizona

House of Representatives in Legislative District 24.                                 McDermott

appealed from a superior court judgment striking her from the

primary election ballot because she incorrectly identified her

surname as “Cheuvront-McDermott” in her nomination paper.                                       We

issued   an       order   affirming       in       part    and      reversing        in    part,

concluding        that    McDermott       could       appear        on     the      ballot      as

“McDermott,        Jean     Cheuvront.”             This       opinion         explains         our

reasoning.

                                            I.

¶2            A    person      seeking    to       appear      on    the    ballot        for    a

partisan    primary       election       must      file    a   nomination          paper     that

identifies, among other things, “the exact manner in which the

person desires to have the person’s name printed on the official

ballot     pursuant       to     subsection         G.”          A.R.S.        §    16-311(A).

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Subsection G further provides that the person’s name

       shall be limited to the candidate's surname and given
       name or names, an abbreviated version of such names or
       appropriate initials such as “Bob” for “Robert”, “Jim”
       for “James”, “Wm.” for “William” or “S.” for “Samuel”.
       Nicknames are permissible, but in no event shall
       nicknames, abbreviated versions or initials of given
       names suggest reference to professional, fraternal,
       religious or military titles. No other descriptive
       name or names shall be printed on the official ballot,
       except as provided in this section. Candidates’
       abbreviated names or nicknames may be printed within
       quotation marks. The candidate's surname shall be
       printed first, followed by the given name or names.

¶3             “A person who does not file a timely nomination paper

that   complies     with      [§    16-311]       is     not    eligible    to   have    the

person’s name printed on the official ballot for that office.”

Id. § 16-311(H).             Under well-settled law, however, “we do not

remove candidates from the ballot for mere technical departures”

from the statutorily required forms.                     Bee v. Day, 218 Ariz. 505,

507    ¶¶   9-10,   189      P.3d    1078,        1080    (2008).      Respecting        the

electors’      right    to    nominate    legitimate            candidates,      we   assess

whether     nominating         papers     substantially             comply       with    the

statutory requirements.             See id.

¶4             Bahney    Dedolph        brought          this     action     seeking      to

disqualify McDermott because her nomination paper stated that

she desired to appear on the ballot as “Cheuvront-McDermott,

Jean” when her legal surname is McDermott.                         McDermott responded

by arguing that this challenge was untimely under A.R.S. § 16-

351;    that    §   16-311(G)       allowed        her     to    identify     herself     as
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“Cheuvront-McDermott” as a nickname; and, in any event, that she

had substantially complied with the statutory requirements.

¶5           The trial court held an evidentiary hearing, at which

the following facts were undisputed.                        In 1957, McDermott, who

had moved to Phoenix the preceding year, married Jerry Cheuvront

and changed her name to Lois Jean Cheuvront.                        The next year, the

couple moved into the area that is now District 24, where they

lived until the 1970s and McDermott taught in public schools.

Students and parents knew her under her married name Cheuvront.

In the mid-1970s, McDermott moved out of District 24, but she

continued working at a hospital and art museum there.                           She also

maintained business dealings in the district under the name of

Cheuvront,        both     as    a      realtor      and     through    her    husband’s

construction company.                 In 1984, she moved back to District 24

for several years before relocating to Massachusetts in 1988.

¶6           In    1989,    McDermott       remarried         and   changed   her   legal

surname from Cheuvront to McDermott.                       After Mr. McDermott became

ill   in   1993,     the    couple        moved      to    Phoenix.     In    1998,   she

successfully ran for precinct committeewoman as Jean McDermott.

After Mr. McDermott died in 2002, she again ran for precinct

committeewoman as Jean McDermott in 2002, 2004, and 2006.

¶7           McDermott          now    again       lives    in   District     24.     She

testified that, because she was known as Jean Cheuvront when she

previously lived in this district, she often introduces herself
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as Jean Cheuvront-McDermott or clarifies that her previous name

was Cheuvront.     As a candidate for the House of Representatives

for District 24, McDermott circulated nomination petition forms

for electors to sign that identified her as “Jean Cheuvront

McDermott.”     Dedolph does not dispute that McDermott obtained

sufficient signatures to qualify for the ballot.

¶8           The superior court ruled that Dedolph’s challenge was

timely, that McDermott had not complied with § 16-311 because

“Cheuvront-McDermott” is not her surname, and that she also had

not substantially complied with the statute.          Accordingly, the

superior   court   ordered   that   McDermott   not   be   listed   as   a

candidate on the 2012 primary election ballot.         McDermott filed

a timely appeal with this Court pursuant to § 16-351(A) and

ARCAP 8.1.

                                    II.

¶9           McDermott first argues that Dedolph’s challenge to her

nomination was untimely under § 16-351(A), which provides that

such actions must be filed “no later than 5:00 p.m. of the tenth

day, excluding Saturday, Sunday and other legal holidays, after

the last day for filing nominating papers and petitions.”            The

deadline for filing nominating papers and petitions was May 30,

2012.   See § 16-311(A).     Because the tenth day after May 30 was

June 9, a Saturday, McDermott concludes that the deadline for

filing a challenge to her nomination was Monday, June 11, 2012.
                                     5
Dedolph filed this action on Wednesday, June 13.

¶10          Before       2003,    §   16-351(A)      required      that    nomination

challenges be filed “within ten days, excluding Saturday, Sunday

and   other       legal    holidays,     after      the    last     day    for   filing

nomination papers and petitions.”                  We construed that language as

“giv[ing] an elector ten business days after the petition filing

deadline to challenge the validity of signatures on nomination

petitions.”        Powers v. Carpenter, 203 Ariz. 116, 119 ¶ 15, 51

P.3d 338, 341 (2002).             Dedolph filed her challenge on the tenth

business day after the May 30 petition filing deadline.

¶11          McDermott        argues   that    §    16-351(A)      no   longer   allows

nomination challenges to be filed within ten business days after

the petition filing deadline.              In 2003, the legislature amended

the statute by replacing “within ten days” with the phrase “no

later than 5:00 p.m. of the tenth day.”                    2003 Ariz. Sess. Laws,

ch.   233,    §    5   (1st    Reg.    Sess.).       Based   on     this    amendment,

McDermott contends that challenges now must be filed within ten

calendar days after the petition filing deadline, unless the

tenth day falls on a Saturday, Sunday, or other legal holiday.

¶12          We disagree.           Under McDermott’s interpretation, the

phrase   “excluding        Saturday,     Sunday      and   other    legal    holidays”

would effectively be rendered superfluous.                        Even without this

language, if the deadline falls on one of the identified days, a

challenge filed on the next business day would be timely.                          See
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Bohart v. Hannah, 213 Ariz. 480, 482 n.2 ¶ 7, 143 P.3d 1021,

1023   n.2   (2006)     (noting         that       under     §    16-351(A),       if    five-

calendar-day deadline falls on Saturday, Sunday, or a holiday,

notice of appeal is timely when filed on the next business day);

A.R.S. § 1-303 (allowing performance on next business day when

deadline     falls     on      a        holiday).                Moreover,       McDermott’s

interpretation implies that the legislature, through the 2003

amendment, intended to significantly reduce the time for filing

nomination petition challenges by replacing the ten-business-day

period with a ten-calendar-day period.                       If the legislature had

intended     this    result,       it     could      have        simply     provided      that

nomination challenges must be filed “not later than 5:00 p.m.

within ten days after” the petition filing deadline.                               Instead,

the legislature evidently intended to set a 5:00 p.m. deadline

on the tenth business day after the petition filing deadline.

See Ariz. State Senate, Fact Sheet for S.B. 1046, 46th Leg., 1st

Reg.   Sess.    (Feb.       23,     2003)          (noting        that    2003     amendment

“[c]larifies    that    the        deadline        for     filing     any    court      action

challenging the nomination of candidates is 5:00 p.m. of the

10th day following the last day for filing nominating papers and

petitions, excluding weekends and legal holidays”).

¶13          Dedolph timely filed her challenge by 5:00 p.m. on the

tenth business day after the petition filing deadline.


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                                           III.

¶14           McDermott argues that § 16-311(G) allowed her to list

her    name    on    the   ballot     as    “Cheuvront-McDermott,          Jean”      and,

alternatively, that she should remain on the ballot because she

substantially complied with the statutory requirements.

¶15           We agree with the superior court that McDermott did

not technically comply with § 16-311(G).                    The first sentence of

subsection (G) requires a candidate to specify how his or her

name    should      appear    on    the    official   ballot,       restricting        the

choices to “the candidate’s surname and given name or names, an

abbreviated version of such names or appropriate initials such

as “Bob” for “Robert”, “Jim” for James, “Wm.” for “William” or

“S.” for “Samuel.””                McDermott notes that the next sentence

provides      that   “[n]icknames         are   permissible,       but   in    no    event

shall nicknames, abbreviated versions or initials of given names

suggest       reference      to    professional,      fraternal,         religious      or

military titles.”            She then contends that “Cheuvront-McDermott”

is a permissible “nickname surname” under the statute.

¶16           Under § 16-311(G), a candidate must list his or her

legal   surname      in    the     nomination     papers,    and    that      name   must

appear first on the ballot.                 The statute begins by directing

that the candidate’s name “shall be limited to the candidate’s

surname and given name or names, an abbreviated version of such

names or appropriate initials,” and it concludes by requiring
                                            8
that “[t]he candidate’s surname shall be printed first, followed

by    the   given       name       or     names.”         Id.    (emphasis      added).     The

intervening         statutory             declaration            that     “[n]icknames      are

permissible” allows nicknames in addition to or in place of a

candidate’s given name, but it does not allow the substitution

of    a   nickname          for    the    required        surname.        For   example,    the

statute might have allowed Ernest W. McFarland to appear on the

ballot as “McFarland, Ernest ‘Mac’”, because his nickname was

“Mac,” but it would not have allowed him to use “Mac” in lieu of

his surname.            Cf. James W. Johnson, Arizona Politicians: The

Noble     and     the       Notorious      62,    65      (2002)    (discussing       political

career      of    Ernest          “Mac”    McFarland        as     U.S.    Senator,     Arizona

Governor, and Arizona Supreme Court Justice).

¶17              If McDermott wanted the ballot to reflect that she is

also known as Cheuvront, she should have listed her name in the

nomination        paper       as    “McDermott,        Jean       Cheuvront”     rather    than

“Cheuvront-McDermott,               Jean.”          Because        she    did   not    strictly

comply      with        §     16-311(G),          we      must     consider      whether    she

substantially complied, an issue we review de novo.                                   Moreno v.

Jones, 213 Ariz. 94, 101-02 ¶ 40, 139 P.3d 612, 619-20 (2006).

This analysis considers the nomination paper as a whole, see

Bee,      218    Ariz.       at    507-08     ¶     12,    189     P.3d    at   1080-81,    and

“focuse[s] on whether the omission of information could confuse

or mislead electors,” Moreno, 213 Ariz. at 102 ¶ 42, 139 P.3d at
                                                   9
620.

¶18          McDermott      substantially        complied   with       §     16-311(G).

Her nomination petition forms listed her name as “Jean Cheuvront

McDermott,” three names by which she has been known.                         She could

have used nominating petitions in this form if she had listed

her name as “McDermott, Jean Cheuvront” in her nomination paper

filed   under    §    16-311(G).      Nothing      suggests     that       McDermott’s

listing    her       name    as    “Cheuvront-McDermott,             Jean”     in     her

nomination    paper     would     cause   electors    signing        her     nomination

petitions to be confused or misled about her identity.

¶19          Our conclusion that McDermott substantially complied

with the requirements in § 16-311(G) does not mean that she

should appear on the ballot as “Cheuvront-McDermott, Jean.”                           The

statute directs that “[t]he candidate’s surname shall be printed

first,” and McDermott’s substantial compliance does not relieve

the election officials responsible for printing the ballots from

this    statutory     requirement.         See    A.R.S.    §   16-503        (duty    to

prepare      ballots        containing     the      names       of      candidates).

Accordingly, we ordered that McDermott’s name be printed on the

primary ballot as “McDermott, Jean Cheuvront.”




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                               IV.

¶20       For the foregoing reasons, we affirmed in part and

reversed in part the judgment of the superior court.


                           ___________________________________
                           Scott Bales, Vice Chief Justice

CONCURRING:


___________________________________
Rebecca White Berch, Chief Justice


___________________________________
Robert M. Brutinel, Justice




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