                                                                    


                    SUPREME COURT OF ARIZONA
                             En Banc

TRANSPORTATION INFRASTRUCTURE     )   Arizona Supreme Court
MOVING ARIZONA'S ECONOMY, a       )   No. CV-08-0275-AP/EL
political committee registered    )
with the Arizona Secretary of     )   Maricopa County
State; THOMAS ZIEMBA, an          )   Superior Court
individual,                       )   No. CV2008-019561
                                  )
           Plaintiffs/Appellants, )
                                  )
                 v.               )   O P I N I O N
                                  )
JANICE K. BREWER, in her          )
official capacity as Secretary    )
of State; and HELEN PURCELL, in   )
her official capacity as          )
Maricopa County Recorder,         )
                                  )
            Defendants/Appellees. )
                                  )
__________________________________)


        Appeal from the Superior Court in Maricopa County
                The Honorable Mark F. Aceto, Judge

                            AFFIRMED
________________________________________________________________

PERKINS COIE BROWN & BAIN P.A.                           Phoenix
     By   Paul F. Eckstein
          Charles A. Blanchard
          Rhonda L. Barnes
          M. Bridget Minder
          Craig A. Morgan
          James E. Barton, II
Attorneys for Transportation Infrastructure Moving Arizona's
Economy and Thomas Ziemba

TERRY GODDARD, ARIZONA ATTORNEY GENERAL                  Phoenix
     By   Mary R. O’Grady, Solicitor General
          Barbara A. Bailey, Assistant Attorney General
          Tanja K. Shipman, Assistant Attorney General
Attorneys for Janice K. Brewer, Arizona Secretary of State
COPPERSMITH GORDON SCHERMER & BROCKELMAN PLC             Phoenix
     By   Andrew S. Gordon
Attorneys for Amici Curiae Professional Firefighters
of Arizona, Kimberly A. Demarchi, Andrew S. Gordon,
Thomas K. Irvine, and J. Grant Woods
________________________________________________________________

H U R W I T Z, Justice

¶1             The    issue      before    us     is      whether       the     superior        court

erred     in        dismissing        claims         by     appellants          Transportation

Infrastructure           Moving       Arizona’s           Economy       and     Thomas      Ziemba

(hereafter          collectively         referred          to     as     “TIME”)         that     the

Secretary of State violated A.R.S. § 19-121.01 (2002) in her

review    of        an     initiative       petition            concerning         the     Arizona

transportation system.

                                                I.

                                                A.

¶2             Our       constitution           reserves          to      the        people       the

legislative power of initiative.                          Ariz. Const. art. 4, pt. 1,

§ 1(2).        That      right     is     exercised          by       filing    an      initiative

petition with the Secretary of State not less than four months

before    the       date    of    a     general       election.              Id.     § 1(4).        A

legislative measure properly proposed by initiative is referred

to the people at the next general election.                             Id. § 1(5).

¶3             To    qualify      for     the    ballot,          an    initiative        petition

proposing      legislation         must    be        signed      by    ten     percent     of    all

qualified      electors.           Id.    § 1(2).               The    number      of    qualified

                                                 2
electors is “[t]he whole number of votes cast for all candidates

for Governor at the general election last preceding the filing

of” the initiative petition.                                         Id. § 1(7).

¶4                           The           legislature             has   enacted    a    detailed   scheme     for

determining whether the sponsors of an initiative have submitted

sufficient signatures.                                           See A.R.S. §§ 19-121 to -122 (2002 &

Supp.                2007).                        That        process   begins     when    “petition   sheets”

containing signatures are submitted to the Secretary of State.

The initiative petition is then deemed filed and the Secretary

issues a receipt “based on an estimate . . . of the purported

number of sheets and signatures filed.”                                             A.R.S. § 19-121(B).

¶5                           The Secretary has twenty days from the date of filing,

excluding weekends and holidays, to “remove” certain signature

sheets and individual signatures under A.R.S. § 19-121.01(A).1

The Secretary is required to disqualify entire signature sheets

for specified reasons.                                         A.R.S. § 19-121.01(A)(1).          The Secretary

next            reviews                   the           remaining    sheets   and       removes   signatures   by

electors not from the county with the most signers on a sheet.


                                                            
1
     Until this year, the period for removal was fifteen days.
See A.R.S. § 19-121.01(A) (2002).    On May 27, 2008, emergency
legislation was enacted extending the time period to twenty
days. 2008 Ariz. Sess. Laws, ch. 244, §§ 3, 7 (2d Reg. Sess.).
Because this legislation was not precleared by the United States
Department of Justice under section 5 of the Voting Rights Act
of 1965, 42 U.S.C. § 1973c (2000), until July 31, 2008, the
Secretary completed removal of signatures from TIME’s signature
sheets within the previously applicable fifteen-day period.
                                                                         3
A.R.S.    § 19-121.01(A)(2).                The     Secretary        also     must     remove

individual       signatures        that    are     missing        required    information,

exceed the permitted number of fifteen signatures per sheet, or

have been withdrawn.               A.R.S. § 19-121.01(A)(3).                 The Secretary

then counts the total sheets and signatures that have not been

removed     and       issues       a    receipt        to    the    initiative        sponsor

specifying the total number of sheets and signatures “eligible

for verification.”            A.R.S. § 19-121.01(A)(4)-(6).

¶6           If the number of signatures eligible for verification

“equals or exceeds the constitutional minimum,” the Secretary

then selects at random five percent of the remaining signatures.

A.R.S. § 19-121.01(B).                 The sample must “be drawn in such a

manner that every signature eligible for verification has an

equal    chance       of   being       included.”           Id.     The   Secretary      must

“reproduce a facsimile of the front of each signature sheet”

containing       a    signature        selected    for      the    sample    and     transmit

these     facsimiles          to   the    county        recorders.           A.R.S.     § 19-

121.01(C).

¶7           A       second    phase      of     the    verification         process     then

begins.      The county recorders have fifteen days to determine

whether signatures in the random sample should be disqualified




                                               4
for various reasons.                                           A.R.S. § 19-121.02(A) (Supp. 2007).2                     The

recorders                        must               then        certify    their       determinations             to    the

Secretary.                           A.R.S. § 19-121.02(B).                      The recorders also “[s]end

notice of the results” to the initiative sponsor.                                                          A.R.S. § 19-

121.02(D)(2).

¶8                           After               receiving         the    certifications            from    the    county

recorders,                          the             Secretary       has    seventy-two          hours,        excluding

weekends and holidays, to certify the total number of valid

signatures.                            A.R.S. § 19-121.04(A).3                     The starting point is the

number of eligible signatures determined under § 19-121.01(A)(6)

— the number from which the Secretary selected the five-percent

random                 sample.                        A.R.S.      § 19-121.04(A).             The    Secretary         then

subtracts                       signatures                     disqualified      by     the    county        recorders.

A.R.S.                   § 12-121.04(A)(2).4                              From        the     remaining        eligible



                                                            
2
     On May 27, 2008, the statutory period was extended from ten
to fifteen days. 2008 Ariz. Sess. Laws, ch. 244, § 4 (2d Reg.
Sess.). See supra note 1.
3
     The statutory period was extended from forty-eight to
seventy-two hours on May 27, 2008.   2008 Ariz. Sess. Laws, ch.
244, § 5 (2d Reg. Sess.). See supra note 1.
4
     Section 19-121.04(A)(1) allows the Secretary also to
subtract from the total computed under § 19-121.01(A)(6)
signatures on petitions containing a defective circulator’s
affidavit.    The Secretary, however, is required under § 19-
121.01(A)(1)(d)-(f)   to   remove     petitions    with   defective
affidavits before computing the § 19-121.01(A)(6) base number.
Moreover, the review by the county recorders does not involve
circulators’   affidavits,  as    the    recorders   receive   only
facsimiles of the fronts of the signature sheets under § 19-
                                5
signatures, the Secretary subtracts a “like percentage” of the

signatures      disqualified          in    the      random     sample.       A.R.S.       § 19-

121.04(A)(3).

¶9           If the remaining number of signatures is greater than

one   hundred     five    percent          of    the    constitutional        minimum,      the

Secretary       notifies        the        applicant          and    Governor       that    the

initiative      should     be    placed          on     the    ballot.        A.R.S.       § 19-

121.04(B).       If the remaining number is less than ninety-five

percent    of    the     minimum,          the    Secretary         returns   the    original

signature     sheets      and    notifies            the   applicant      that   there       are

insufficient signatures.               A.R.S. § 19-121.04(D).                 If the number

falls    between    ninety-five            and    one      hundred     five   percent,      the

Secretary orders the county recorders to examine and verify each

signature filed to determine whether the number required by the

constitution has been submitted.                     A.R.S. § 19-121.04(C).


_____________________ 
121.01(C), and the circulators’ affidavits are on the backs of
the sheets.

     It appears that § 19-121.04(A)(1) is a remnant of a
previous legislative scheme. Until 1999, the Secretary of State
was also required to reproduce a facsimile of the circulator’s
affidavit for every petition sheet not removed by the Secretary,
A.R.S. § 19-121.01(C) (Supp. 1998); county recorders then
determined whether affidavits would be disqualified, A.R.S.
§ 19-121.02(A)(10), (B) (Supp. 1998).   The legislature amended
the statute in 1999 to relieve the county recorders of the duty
of verifying circulators’ affidavits and accordingly also
removed the requirement that facsimiles of affidavits be
transmitted.   1999 Ariz. Sess. Laws, ch. 353, §§ 5-6 (1st Reg.
Sess.).
                                                 6
                                             B.

¶10          On July 2, 2008, TIME filed signature sheets with the

Secretary of State, who issued an “Initial Receipt” reflecting

TIME’s    estimate         of    the     number    of     sheets     and     signatures

submitted.      On July 24, 2008, the Secretary issued a second

receipt stating that she had “completed her duties” under § 19-

121.01(A) and accordingly had “filed a total of 19,945 petition

signature sheets containing 238,874 signatures.”                         The Secretary

listed   the    reasons         for    the   removal      of    various     sheets    and

signatures submitted by TIME.                See A.R.S. § 19-122(A) (requiring

the Secretary to provide the initiative sponsor “with a written

statement”     for   actions          undertaken   in     the   §   19-121.01    review

process).      The Secretary then created a five-percent sample of

the remaining 238,874 signatures — 11,944 signatures — and sent

facsimiles     of    the    sheets      containing      these     signatures     to   the

county recorders for verification.                   The county recorders then

disqualified 5,021 signatures, or 42.04 percent of the sample.

The bulk of the disqualifications came from Maricopa County;

that county’s recorder received 10,445 of the signatures in the

sample and disqualified 4,712.

¶11          On August 11, 2008, the Secretary notified TIME that

after    applying      the      recorders’        error    rate     to     the   238,874

signatures that she had previously determined were eligible for

verification, the number of valid signatures projected from the
                                             7
random sample was 138,451.          The constitutional minimum for an

initiative     proposing     legislation       was        153,365     signatures.

Ninety-five percent of this number is 145,697.                   Because TIME had

submitted only 90.28 percent of the constitutional minimum, the

Secretary concluded that the petition should not be placed on

the ballot.    See A.R.S. § 19-121.04(D).

                                      C.

¶12          On August 13, 2008, TIME filed a complaint in Maricopa

County Superior Court against the Secretary of State and the

Maricopa County Recorder.          The complaint alleged that (1) the

Secretary     had   improperly      removed     9,168       signatures      before

creating the sample and (2) the Maricopa County Recorder had

improperly    disqualified   429    signatures       in    the    random   sample.

TIME asked that these signatures be added to the base number of

qualified    signatures.     TIME    also     requested      that    the   overall

error rate be adjusted in light of the signatures allegedly

improperly disqualified by the Maricopa County Recorder.

¶13          TIME contended that if its requested adjustments were

made, the valid number of signatures submitted would be at least

ninety-five percent of the constitutional minimum.                   Because the

Maricopa County Recorder had previously indicated that she could

not verify all the signatures submitted for another initiative




                                      8
before early voting began,5 TIME asked that its initiative be

placed on the ballot without a verification of each signature

filed.                   See Save Our Pub. Lands Coalition v. Stover, 135 Ariz.

461,            464,             662           P.2d            136,    139     (1983)     (holding     that    if   county

recorders                       are            unable            to    verify        before    the    ballot    printing

deadline                    each             signature                of   a    petition      for    which    the   random

sample produces a certification rate between ninety-five and one

hundred five percent, the initiative should be placed on the

ballot).

                                                                               D.

¶14                          On August 19, 2008, the Secretary of State moved to

dismiss the claims against her.                                                     She argued that under A.R.S.

§ 19-122(A),                            TIME              was    required           to   challenge    her     removal   of

petition sheets and signatures within ten days of her July 24,

2008 letter.                               The superior court granted the motion to dismiss

and on August 21, 2008, entered a judgment pursuant to Arizona

Rule of Civil Procedure 54(b) in favor of the Secretary; the

claims against the Maricopa County Recorder remained.



                                                            
5
     Pursuant to A.R.S. § 19-121.04(C), the Secretary had
ordered county recorders to verify each signature submitted in
support of the “Protect Our Homes” initiative, for which the
random sample had projected a valid signature rate between
ninety-five and one hundred five percent.   On August 4, 2008,
the Maricopa County Recorder notified the Secretary of State
that she could not complete this verification before early
voting was scheduled to begin.
                                                                               9
¶15                          On the following day, August 22, TIME filed a notice

of          appeal                 pursuant                    to     ARCAP    8.1(c).            This   Court    held    a

scheduling conference on the same day pursuant to ARCAP 8.1(f)

and was informed by elections officials that to comply with

statutory                       deadlines                      governing       early        balloting,      the   general

election ballot needed to be submitted to the printer by the

close of business on August 26 and finalized by August 28.                                                               See

2008 Ariz. Sess. Laws, ch. 273, § 16 (2d Reg. Sess.) (amending

A.R.S. § 16-545(B)) (requiring delivery of early ballots to the

recorder                      no           later               than     the        thirty-third      day     before      the

election);                        id.            § 14          (amending       A.R.S.       § 16-542(C))      (requiring

mailing                  of          early               ballots       within        five    days   after    receipt      by

recorder).6                              With             the       concurrence       of    the   parties,    the     Court

ordered that simultaneous briefs be filed on August 25, 2008, in

order that a decision could be reached on the following day.                                                             No

party requested oral argument.

¶16                          We         issued                 an    order    affirming       the    judgment     of     the

superior court on August 26, 2008, noting that an opinion would

follow.                   This is that opinion.


                                                            
6
     These   statutory   amendments   were  precleared  by   the
Department of Justice on September 2, 2008.         The previous
versions of the two statutes were functionally the same.     See
A.R.S. § 16-545(B) (2006) (requiring ballots to be delivered to
recorders by the thirtieth day preceding the Saturday before the
election); A.R.S. § 16-542(C) (requiring the recorders to mail
the ballots within five days of receipt).
                                                                              10
                                            II.

¶17         Chapter 1 of Title 19, which governs initiative and

referendum petitions, contains several provisions allowing for

judicial review of decisions by election officials and setting

deadlines       for   bringing      suit.        County   recorders’   actions    are

reviewed    under       A.R.S.      § 19-121.03.          Subsection   (A)   governs

claims that a recorder has failed or refused to comply with

§ 19-121.02; suit must be brought within ten days after the

failure    or    refusal.        A.R.S.     § 19-121.03(A).        Subsection     (B)

governs challenges to a recorder’s certification of the number

of valid signatures in the random sample.                    Suit must be brought

within    ten    days    of   the    receipt      of   the   certification   by   the

Secretary of State.           A.R.S. § 19-121.03(B).

¶18         Section 19-122 governs challenges to actions of the

Secretary of State.           Subsection (C) allows a suit to enjoin the

Secretary from certifying an initiative measure to the ballot if

the “petition filed is not legally sufficient.”                        A.R.S. § 19-

122(C).     Subsection (C) contains no time limitation, but we have

held that any suit under this provision “must be initiated and

heard in time to prepare the ballots for absentee voting to

avoid rendering an action moot.”                  Kromko v. Superior Court, 168

Ariz. 51, 57, 811 P.2d 12, 18 (1991).

¶19         By their terms, neither § 19-121.03 nor § 19-122(C)

applies to TIME’s claims against the Secretary of State.                          The
                                            11
only other judicial review provision in Chapter 1 is A.R.S.

§ 19-122(A).                             That statute provides in relevant part as follows:

                   If the secretary of state refuses to accept and
              file a petition for the initiative . . . which has
              been presented within the time prescribed, or if he
              refuses to transmit the facsimiles of a signature
              sheet or sheets or affidavits of circulators to the
              county recorders for certification under § 19-121.01,
              he shall provide the person who submitted the
              petition, proposal, signature sheet or affidavit with
              a written statement of the reason for the refusal.
              Within ten calendar days after the refusal any citizen
              may apply to the superior court for a writ of mandamus
              to compel the secretary of state to file the petition
              or proposal or transmit the facsimiles . . . .7

¶20                          The            superior           court     held   that   § 19-122(A)     governs

TIME’s claims against the Secretary.                                              The Secretary of State

provided TIME with written reasons for her disqualification of

certain signature sheets and signatures on July 24, 2008; TIME

did not commence this suit until August 13.                                             Therefore, if § 19-

122(A) governs TIME’s claims against the Secretary, the superior

court correctly dismissed those claims as untimely.

                                                                        A.

¶21                          TIME first argues that its complaint is not governed

by         § 19-122(A)                            because       it    attacks   the    Secretary’s    ultimate

certification                              pursuant            to    § 19-121.04(D)    that   the   initiative

lacked sufficient signatures to be placed on the ballot.                                                 That

                                                            
7
     The references in § 19-122(A) to affidavits of circulators
are apparently a historical anomaly, as the Secretary now has no
duty   under  § 19-121.01   to  transmit  facsimiles   of  these
affidavits to the county recorders. See supra note 4.
                                                                        12
certification     was    not   made      until    after   the   county     recorders

completed their work under § 19-121.02 and thus could not have

been challenged within the ten-day period specified in § 19-

122(A),   which    began      to   run    on    July   24,   2008,   the    day   the

Secretary notified TIME of her reasons for rejecting various

signature sheets and signatures.

¶22         We need not tarry over this argument.                  The Secretary’s

ultimate certification under § 19-121.04 as to the results of

the screening process is a purely mathematical calculation – the

Secretary starts with the base number of signatures submitted

(as   previously        determined       by      the   Secretary     under     § 19-

121.01(A)(6)) and then subtracts signatures disqualified by the

county    recorders     and    a   “like       percentage”   of    the   signatures

disqualified in the sample.                The Secretary then compares the

resulting number to the constitutional minimum to qualify for

the ballot.       TIME did not allege that the Secretary made any

mathematical errors in the § 19-121.04 calculations, but rather

that the numbers used in that calculation resulted from prior

errors in the review processes conducted by the Secretary under

§ 19-121.01 and the Maricopa County Recorder under § 19-121.02.

¶23         Moreover, TIME’s argument proves too much.                   Challenges

to a recorder’s certification are governed by § 19-121.03(B).                      A

challenger cannot avoid the time limitation in § 19-121.03(B) by

claiming that the Secretary’s ultimate calculations under § 19-
                                           13
121.04    were     based     on   an   improper        certification           by    a   county

recorder.       See Open Primary Elections Now v. Bayless, 193 Ariz.

43, 46 ¶ 10, 969 P.2d 649, 652 (1998).                             Similarly, if § 19-

122(A)        governs        TIME’s     challenges            to     the        Secretary’s

determinations under § 19-121.01, the time limitations of that

statute       cannot    be    circumvented        by    describing         a    suit      as   a

challenge to the ultimate § 19-121.04 calculations.                                  Thus, we

must move to the central question in this case:                                 Does § 19-

122(A) apply to TIME’s suit against the Secretary?

                                            B.

¶24            TIME suggests that this Court adopt a “narrow reading”

of § 19-122(A) and hold that the statute does not apply to all

decisions made by the Secretary under § 19-121.01, but rather

only     to    refusals      to   accept     and       file   an    entire          initiative

petition      or   to   transmit       to   the    county      recorders            facsimiles

created by the Secretary under § 19-121.01(C).                              The Secretary

argues that because TIME is challenging her removal of signature

sheets and signatures, it is necessarily contending that she

should have accepted these sheets and signatures for filing and

sent     additional        signatures       and    facsimiles          to       the      county

recorders for verification.                 The Secretary contends that § 19-

122(A) therefore applies.

¶25            TIME grounds its argument in a parsing of § 19-122(A),

which refers to the failure of the Secretary “to transmit the
                              14
facsimiles of a signature sheet or sheets . . . to the county

recorders         for    certification,”          not    to    the    failure        of        the

Secretary        to     create    facsimiles      in    the   first    place.         TIME’s

reading of the statute is not without some technical linguistic

appeal.          But, as TIME concedes, its interpretation of § 19-

122(A) creates a wide gap in the judicial review provisions of

Title 19, Chapter 1.                No statute in that chapter other than

§ 19-122(A) purports to allow judicial review of the decisions

of    the       Secretary      today   challenged        by   TIME.          Under    TIME’s

reading, the initiative statutes would contain no provision for

judicial review of either the Secretary’s decision to disqualify

sheets      and       signatures    under    § 19-121.01        or     the    Secretary’s

consequent failure to create a sufficiently large random sample

for recorder review.

¶26              We confronted a similar issue in Pointe Resorts, Inc.

v. Culbertson, 158 Ariz. 137, 761 P.2d 1041 (1988).                                  In that

case,       a    city     clerk    determined        that     the     proponents          of    a

referendum challenging a municipal ordinance had submitted an

insufficient number of valid signatures.                       Id. at 139, 761 P.2d

at 1043.         The plaintiff challenged that certification; the issue

was     whether         that     challenge     was      governed      by     the     ten-day

limitation in § 19-121.03(B).

¶27              The    challenger     in    Pointe         Resorts    relied        on        the

language of § 19-121.03(B), which on its face applied only to
                                             15
“the certification made by the county recorder.”                         Id. at 143,

761 P.2d at 1047.           We rejected that claim in part because the

“statute and its provisions must of necessity apply here or

there   is   no    machinery     by   which   the       courts   could    review   the

clerk’s actions at all.”              Id. at 143-44, 761 P.2d at 1047-48.

We refused to countenance such a “nonsensical” result.                        Id. at

143, 761 P.2d at 1047.

¶28          In Kromko v. Superior Court, we addressed an analogous

argument.     Relying on legislative history, the proponent of an

initiative argued that § 19-122(C) requires that challenges to

the Secretary’s decision to place a measure on the ballot be

filed within the same ten-day period as challenges under § 19-

122(A).      Kromko, 168 Ariz. at 55, 811 P.2d at 16.                      We noted,

however, that such a reading would deprive challengers of any

statutory avenue for review of the Secretary’s decision to place

on    the    ballot    a    petition     initially         accepted      subject    to

verification under §§ 19-121.01 and 19-121.02.                     Id. at 56, 811

P.2d at 17.        We refused to interpret the statutes in a manner

that would deprive citizens of “the means and opportunity” to

challenge the Secretary’s actions.                Id.

¶29          Similar concerns guide us here.                Given the importance

of the initiative process, it is extremely unlikely that the

legislature would provide in § 19-122(A) a prompt remedy for the

Secretary’s       failure   to   transmit     a    single    facsimile     sheet   as
                                         16
required by § 19-121.01, but provide no remedy at all for the

improper disqualification under the same statute of hundreds of

signature    sheets.         Nor   do    we    believe    that     the    legislature

intended    that    § 19-122(A)     require      a   prompt      challenge    to    the

Secretary’s decision to reject an entire petition because of

defects in a sufficient number of circulators’ affidavits, but

not    govern    judicial     review     of    the   Secretary’s         decision    to

disqualify a lesser number of sheets (but not enough to require

rejection of the petition) on identical grounds.                       Cf. Harris v.

City of Bisbee, 219 Ariz. 36, 39 ¶¶ 9-12, 192 P.3d 162, 165

(App. 2008) (holding that § 19-122(A) governs action attacking

town   clerk’s     invalidation     of    signature      sheets     and    consequent

refusal to forward petitions to county recorder for verification

under § 19-121.01(B)-(C)).

¶30         We     decline   to    conclude     that     Title    19     contains   “no

machinery . . . by which the courts could review the [election

official’s] actions.”         Kromko, 168 Ariz. at 55, 811 P.2d at 16.

Rather,    the   most   reasonable       interpretation       of    § 19-122(A)     is

that it applies to challenges to the Secretary’s actions under

§ 19-121.01, including the disqualification of signature sheets

and signatures, and that the ten-day limitation period begins to

run when the Secretary issues her written statement explaining

her reasons for rejecting signature sheets and signatures.


                                          17
                                         C.

¶31         TIME        argues   that   if   § 19-122(A)      is    interpreted    as

inapplicable to challenges such as the one before us, judicial

review     of     the     Secretary’s    § 19-121.01        disqualification       of

signature       sheets    and    signatures   remains       available    under    the

general     mandamus       statute,     A.R.S.      § 12-2021       (2003).      That

provision authorizes actions “to compel . . . performance of an

act which the law specially imposes as a duty resulting from an

office.”

¶32         As     an    initial    matter,    we    note   that     TIME’s   claims

against the Secretary do not clearly fall within that statute.

We have described mandamus as available only “to require public

officers to perform their official duties when they refuse to

act.”     Sears v. Hull, 192 Ariz. 65, 68 ¶ 11, 961 P.2d 1013, 1016

(1998) (quoting Smoker v. Bolin, 85 Ariz. 171, 173, 333 P.2d

977, 978 (1958)).           In this case, TIME’s claim is not that the

Secretary refused to perform her statutory duties under § 19-

121.01(A) but rather that she erred in performing them.

¶33         But even if this problem is overlooked, a serious one

remains.        Although our statutes do not expressly limit the time

within which mandamus and other extraordinary forms of relief

may be sought, we have long emphasized that a party may not

unreasonably delay in bringing such actions.                       See, e.g., Felix

v. Superior Court, 92 Ariz. 247, 250, 375 P.2d 730, 732 (1962).
                                         18
Consequently, we have denied special action relief in election

cases when delay in filing an action is unreasonable.                          Sotomayor

v. Burns, 199 Ariz. 81, 83 ¶ 8, 13 P.3d 1198, 1200 (2000).

¶34           In    the    case    before       us,    TIME     was    aware     of     the

Secretary’s reasoning for the § 19-121.01(A) disqualifications

by July 24, yet did not file suit until August 13, after the

county recorders had completed their § 19-121.02 certifications.

Under the statutory scheme, if the Secretary indeed erred in

some or all of her § 19-121.01(A) disqualifications, TIME would

only   be    entitled      to     two    remedies:           (1) correction       of    the

Secretary’s initial determination under § 19-121.01(A)(6) of the

number   of     signatures        “eligible      for    verification”       and       (2) a

consequent increase in the number of signatures (and facsimiles)

included in the sample and forwarded to the county recorders for

verification.        By delaying its action until after the recorder

verification process was completed, TIME at the very least made

difficult     –     and   perhaps       impossible      –    any   remedy      involving

further preparation of additional facsimiles by the Secretary

and    review      of     randomly      chosen    signatures          by   the     county

recorders.         And, even assuming that such a process could have

been   completed        before    the   deadline       for    printing     ballots,     it

seems clear that effective judicial review of the recorders’

verifications – either at the trial or appellate level – simply

could not have occurred.             See Harris v. Purcell, 193 Ariz. 409,
                                           19
412-13 ¶ 17, 973 P.2d 1166, 1169-70 (1998) (noting that “[t]o

wait until the last moment [to challenge an election matter]

places the court in a position of having to steamroll through

the delicate legal issues in order to meet the deadline for

measures to be placed on the ballot”) (alterations in original).

¶35                          Thus,                if           we   were   to    accept   TIME’s   argument    that

mandamus is the appropriate method for addressing its claims

against the Secretary, we would be required in virtually every

case to determine whether such claims were unreasonably delayed.

In        contrast,                       § 19-122(A)                 expressly    contemplates    that   suit     be

brought at a time when, if the challenge is successful, the

superior court can order the Secretary to forward additional

facsimiles                        to         the           recorders       for   verification.      There     is   no

significant harm to initiative sponsors in requiring that all

challenges                         to          the             Secretary’s      § 19-121.01   determinations       be

brought within ten days after notice of the reasons for such

actions is issued.8                                            The most reasonable reading of the statutory


                                                            
8
     TIME argues that challengers will face additional expense
if forced first to challenge the Secretary’s decisions under
§ 19-122(A)   and  then   later  to  challenge   the  recorders’
certifications under § 19-121.03(B).   It is not apparent to us
that significant extra expense will thereby be incurred, as
challengers in TIME’s position will be required in the end to
prove their claims against both the Secretary and the recorders.
Moreover, even under TIME’s “narrow” interpretation of § 19-
122(A), two separate suits would be required if the Secretary
improperly failed to transmit a specific facsimile sheet or
rejected an entire petition.
                                                                           20
scheme is that claims that the Secretary erred in the execution

of her § 19-121.01 duties are governed by § 19-122(A), not the

general mandamus statute.

                                                                          III.

¶36                          For            the            reasons      stated       above,    we    hold      that    the

superior                    court               correctly          dismissed         TIME’s    claims     against      the

Secretary as time-barred under § 19-122(A).9

¶37                          It         is         appropriate          to     add    an     additional       word.     We

respectfully                              suggest               that      Title      19      deserves     a     thorough

legislative                            reexamination.                      Even      when,     as    here,      election

officials                       act            promptly           and     both       sides     are   represented        by

extraordinarily                                  able          counsel,    the    entire      statutory       scheme    no

longer can always be followed.                                                   Even in a case not involving

litigation,                              the              Maricopa        County       Recorder         has     candidly


                                                            
9
     Although TIME remained free under the superior court’s Rule
54(b) judgment to pursue its separate claims against the
Maricopa County Recorder, it did not do so before the deadline
for printing early ballots.
     Without success in at least some of TIME’s claims against
the Recorder, even complete success against the Secretary would
not have resulted in placement of the initiative on the ballot.
TIME’s complaint alleged that the Secretary had improperly
disqualified 9,168 signatures.   Assuming that TIME would have
succeeded in establishing that each signature was improperly
disqualified, the resulting number of signatures eligible for
verification under § 19-121.01(A)(6) would have increased to
248,042. But if the statewide error rate from the random sample
remained at 42.04 percent, this increased base number would
result in only 143,765 valid signatures, 93.74 percent of the
constitutional minimum.
                                                                          21
acknowledged that she is unable to complete the signature-by-

signature verification process required by A.R.S. § 19-121.04(C)

in a timely fashion.                 See supra note 5 and accompanying text.

This is not a new problem; we confronted it more than a quarter

of    a   century    ago       in    Save    Our        Public   Lands       Coalition,    and

concluded     that    when          an    initiative        is   denied      its   statutory

entitlement to such review, the appropriate relief is to order

placement of the measure on the ballot.                          135 Ariz. at 464, 662

P.2d at 139.

¶38          But whatever the practical necessity of that decision,

it would clearly be preferable for the legislature to modify the

statutory scheme in light of today’s realities to avoid such

structural problems.                 Our election officials are required to

process large numbers of initiative and referendum petitions.

The growth of the state’s electorate means that the number of

signatures submitted in order to qualify for placement on the

ballot has also steadily grown.                         And, even when the Secretary

and county recorders complete the verification process within

the statutory deadlines, the time for judicial review has been

shortened by the need to prepare ballots for early voting.

¶39          It     is,    of       course,        not    within      our    constitutional

assignment    to     suggest         specific          legislative    solutions     to    this

problem.      And,        if    no       change    is     made   in    the    qualification

process, the judiciary will continue to decide election cases
                                                  22
with all appropriate celerity.        But it is not, we think, beyond

our role to suggest that there may be a better way, and to

encourage   the   other   branches   of   government   to   consider   that

issue.



                            _______________________________________
                            Andrew D. Hurwitz, Justice



CONCURRING:


_______________________________________
Ruth V. McGregor, Chief Justice


_______________________________________
Rebecca White Berch, Vice Chief Justice


_______________________________________
Michael D. Ryan, Justice


_______________________________________
W. Scott Bales, Justice




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