In a case with statewide implications, the Arizona Supreme Court is being asked to decide whether circumstantial evidence a candidate knew of forged signatures on petitions is enough to disqualify him from the ballot.
Tim La Sota, attorney for state Sen. Don Shooter, R-Yuma, acknowledged in filings with the high court there is no hard evidence that Toby Farmer knew the signatures were forgeries. But La Sota said there is no other plausible explanation, and he said it should not be necessary for him to prove that.
“Perhaps a witness could be found who could attest to the candidate's knowledge of the forgery,” he argued to the high court.
“But the candidate who participates in the forging of petitions signatures is unlikely to do this in front of people,” La Sota continued. “He is likely to do it when nobody is around who could witness it.”
What the justices decide will most immediately affect whether Shooter, first elected to the Senate in 2010, will have to face off against Farmer in the Aug. 26 Republican primary.
But the ruling also could set a precedent that would affect future ballot fights. In fact, La Sota told the justices that siding with Farmer would essentially be an invitation for candidates to simply submit forged names since there would be no way to prove they knew the signatures were fake.
At a hearing earlier this month, Maricopa County Superior Court Judge John Rea ruled that it is “clear from the evidence presented” that there were forgeries on petitions that Farmer said he circulated, with seven instances where someone other than the person whose name appears actually signed the paperwork. Rea also noted that Farmer signed an affidavit avowing that the people who signed the petitions did so in his presence.
“However, there has been no evidence that Mr. Farmer knew that the forgeries were occurring,” Rea wrote. There also was testimony that the forged signatures did not match Farmer's own handwriting.
Even after eliminating the forged signatures from the total, that still left Farmer with enough valid names to be on the ballot.
“It is true that there is no video tape to prove that Farmer knew the signatures were forged, and no signed admission to this effect either,” La Sota wrote. But he said there is enough circumstantial evidence that Farmer had to know of the forgeries.
He said the names on the petitions at issue were in alphabetical order, by street address. La Sota said that shows the signatures could not have been collected at some central location. Beyond that, he argued that Rea's ruling is based on the presumption that five different people committed petition forgery without Farmer knowing anything about that.
“Under what possible circumstances would someone be so eager to sign a petition for a candidate that they would approach him and willingly commit a Class 1 misdemeanor and risk up to six months in jail and a $2,500 fine by forging the name of a random person who also resides in that voting precinct?” La Sota asked. “Why wouldn't such a motivated person merely use their own name and address?”
Similarly, La Sota argued the fact that the signatures were in alphabetical order shows that Farmer had not gone door-to-door to get the names.
La Sota told the justices that what they decide here will affect future elections.
“If petition forgery on the part of the candidate is not proven under these facts, it is hard to know under what facts, if any, it would be possible to prove petition forgery,” he wrote.
Secretary of State Ken Bennett, who is technically a party to the case because he certifies who is on the ballot, is taking no position.But in an unusual stance, Assistant Attorney General Michele Forney also emphasized for the justices the importance of what they rule. She said Bennett is asking them that, whatever they decide, “to be mindful of the integrity and the public's perception of the elections process.”
The court is likely to rule on the issue within days.