Attorneys Clash Over Potential Overhaul in Appellate Judge Election System

A recent bid by the Goldwater Institute to change the election process for judges on the Arizona Court of Appeals faced scrutiny on Monday. Maricopa County Superior Court Judge Frank Moskowitz heard arguments regarding the current system and its implications statewide.

Judge Moskowitz acknowledged that the existing method allows only residents of specific counties to vote on whether appellate judges, appointed by the governor, continue to serve. However, he disputed the notion that residents from other counties are disenfranchised, given the statewide impact of appellate rulings. Moskowitz noted that any ruling he issues will also have a statewide impact unless it is appealed.

Attorney Andrew Gould, representing the Goldwater Institute, attempted to convince Moskowitz of the court’s limited statewide authority. Gould argued that the judge has the power to mandate Secretary of State Adrian Fontes to place the names of all appellate judges on ballots across all 15 counties. Assistant Attorney General Emma Mark, defending the current system, accused the Goldwater Institute of trying to achieve through the courts what their Republican allies failed to do legislatively.

The judge hinted he might dismiss the claim but reserved final judgment. Gould indicated that the case would likely advance to the Supreme Court. A swift ruling is essential as counties are scheduled to begin printing ballots in the third week of August, needing clarity on which judges and races will be presented to voters.

The Goldwater Institute’s claim revolves around the fact that appellate judges must stand for retention every six years. The appellate court is divided into two divisions, complicating the voting process. For example, only residents in Pima County, within Division II, vote on judges selected from that county. Meanwhile, residents in other Division II counties vote on judges chosen from among those counties.

Gould argued that Arizonans are disenfranchised when they can’t vote for judges whose decisions impact them. Mark countered that judges serve the people, not represent them, and said the existing system doesn’t violate legal principles. Moskowitz questioned the validity of ensuring all residents have a say, noting retired judges and judges from other counties can be called to serve in different jurisdictions without having been voted on statewide.

The Goldwater Institute’s efforts to change the election system for appellate judges are not new. A 2023 proposal by House Speaker Ben Toma, backed by Goldwater, aimed to require all appellate judges to stand for retention statewide. Although the Republican-controlled Legislature approved the proposal, Governor Katie Hobbs vetoed it, stating it would dilute the votes of residents most impacted by each division’s judges.

Mark emphasized the Goldwater Institute’s current legal strategy aims to achieve what they couldn’t accomplish legislatively. Moskowitz indicated that even if he ruled in favor of Goldwater, it wouldn’t lead to a retention election this year unless lawmakers acted quickly to amend the system. He stated that creating a new system was beyond his court’s powers and was a legislative responsibility.

The judge committed to expediting a ruling on the matter.