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Dec. 4, 2025 Get Citation Alerts Download PDF Add Note

Knight v. Fontes

Arizona Supreme Court

• Citations: None known

• Docket Number: CV-24-0220-T/AP

• Opinion

• Authorities (48)

• Cited By (0)

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Combined Opinion

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

BONNIE KNIGHT, ET AL.,
Plaintiffs/Appellants,

v.

ADRIAN FONTES, ET AL.,
Defendants/Appellees.

No. CV-24-0220-T/AP
Filed December 4, 2025

Appeal from the Superior Court in Maricopa County
The Honorable Frank W. Moskowitz, Judge
No. CV2024000431
AFFIRMED

Appeal to the Court of Appeals, Division Two
No. 2 CA-CV 24-0280
TRANSFERRED

COUNSEL:

Jonathan Riches, Timothy Sandefur, Scott Day Freeman, Parker Jackson,
Scharf-Norton Center for Constitutional Litigation at the Goldwater
Institute, Phoenix; Andrew W. Gould (argued), Hotlzman Vogel Baran
Torchinsky & Josefiak PLLC, Phoenix, Attorneys for Bonnie Knight, et al.

Kristin K. Mayes, Arizona Attorney General, Kara Karlson, Karen J.
Hartman-Tellez, Kyle Cummings, Assistant Attorneys General, Phoenix,
Attorneys for Adrian P. Fontes

Kristin K. Mayes, Arizona Attorney General, Alexander W. Samuels, Emma
H. Mark (argued), Joshua G. Nomkin, Gabriela Monico, Assistant
Attorneys General, Phoenix, Attorneys for State of Arizona
KNIGHT V. FONTES
Opinion of the Court

JUSTICE BEENE authored the Opinion of the Court, in which CHIEF
JUSTICE TIMMER, VICE CHIEF JUSTICE LOPEZ and JUSTICES BOLICK,
MONTGOMERY, KING and CRUZ joined.

JUSTICE BEENE, Opinion of the Court:

¶1 In this special action, four Arizona voters challenge the
constitutionality of the retention election process for court of appeals judges
as set forth in A.R.S. § 12-120.02. Plaintiffs assert that the four geographic
voting districts created by the statute violate the Free and Equal Elections
Clause and the Equal Privileges and Immunities Clause of the Arizona
Constitution. See Ariz. Const. art. 2, §§ 13, 21. For the reasons stated below,
we conclude that § 12-120.02 does not violate these constitutional
provisions. 1

BACKGROUND

I.

¶2 At statehood, the Arizona Constitution did not contemplate
an intermediate court of appeals. Ariz. Const. art. 6, § 1 (amended 1960)
(“The judicial power of the State shall be vested in a supreme court,
superior court, justices of the peace, and such courts inferior to the superior
courts as may be provided by law.”); The Records of the Arizona
Constitutional Convention of 1910, at 1409 (John S. Goff ed., 1991).

¶3 In 1960, voters passed the “Modern Courts Amendment,”
which revised article 6 of the Arizona Constitution and gave the Legislature
power to establish an intermediate appellate court. See Ariz. Sec’y of State,
1960 Publicity Pamphlet 7, 14 (1960); Ariz. Const. art. 6, § 30 (1960) (“Other
courts of record may be established by law . . . .”); Ariz. Const. art. 6, § 1
(“The judicial power shall be vested in an integrated judicial department
consisting of a supreme court, such intermediate appellate courts as may be

1 Plaintiffs argued that the superior court erred in concluding that
mandamus relief was not a proper remedy. Given our disposition on the
constitutional questions, we need not address the propriety of this remedy.
2
KNIGHT V. FONTES
Opinion of the Court

provided by law, a superior court, such courts inferior to the superior court
as may be provided by law, and justice courts.” (emphasis added)); see also
Ariz. Const. art. 6, § 9 (“The jurisdiction, powers, duties and composition of
any intermediate appellate court shall be as provided by law.”).

¶4 In 1964, pursuant to that constitutional authority, the
Legislature established the court of appeals and set forth laws governing its
jurisdiction, powers, duties, and composition. See 1964 Ariz. Sess. Laws
ch. 102, § 1 (2d Reg. Sess.); A.R.S. § 12-120(A) (“A court of appeals is
established and constitutes a single court and such court shall be a court of
record.”); A.R.S. §§ 12-120.01 to -120.32. One such law was § 12-120.02,
governing the election of court of appeals judges. See 1964 Ariz. Sess. Laws
ch. 102, § 1 (2d Reg. Sess.).

¶5 When the court of appeals was established, “all of Arizona’s
state judges were elected by popular vote.” Dobson v. State ex rel. Comm’n
on App. Ct. Appointments, 233 Ariz. 119, 121 ¶ 2 (2013). At the time, supreme
court justices were elected “by the qualified electors of the state,” Ariz.
Const. art. 6, § 4 (1960), and superior court judges were elected “by the
qualified electors of their counties,” Ariz. Const. art. 6, § 12 (1960). See Ariz.
Sec’y of State, 1960 Publicity Pamphlet 8–9 (1960). For the court of appeals,
the Legislature created four geographic voting districts from which judges
would be elected: (1) Maricopa County; (2) all other counties in division 1;
(3) Pima County; and (4) all other counties in division 2. 2 See A.R.S.
§ 12-120.02 (1964); 1964 Ariz. Sess. Laws ch. 102, § 1 (2d Reg. Sess.). These
same four geographic voting districts still exist today. Compare 1964 Ariz.
Sess. Laws ch. 102, § 1 (2d Reg. Sess.) with § 12-120.02.

¶6 It was not until 1974 that “Arizona voters approved
Proposition 108, which amended the Arizona Constitution and introduced
merit selection into Arizona’s judicial selection process.” Dobson, 233 Ariz.
at 121 ¶ 2. Proposition 108 amended article 6, sections 3, 4, 12, 20, 28, 30,
and 35, and added article 6, sections 36 through 40 to the Constitution. See
Ariz. Sec’y of State, 1974 Publicity Pamphlet 25–26 (1974). The amendment
to article 6, section 30 explicitly named the court of appeals as a court of

2 Division 1 consists of Maricopa, Yuma, La Paz, Mohave, Coconino,
Yavapai, Navajo and Apache counties. Division 2 consists of Pima, Pinal,
Cochise, Santa Cruz, Greenlee, Graham and Gila counties. A.R.S. § 12-120
(C), (D).
3
KNIGHT V. FONTES
Opinion of the Court

record and added that “[a]ll justices and judges of courts of record,” with
certain exceptions, “shall be appointed in the manner provided in section
37 of this article.” See id. at 26.

¶7 While the implementation of merit selection replaced the
contested election of judges with gubernatorial appointment, judges are
still held directly accountable to the public under the merit selection system
through noncompetitive, nonpartisan retention elections. See Ariz. Const.
art. 6, § 38; John M. Roll, Merit Selection: The Arizona Experience, 22 Ariz. St.
L.J. 837, 845 (1990). Article 6, section 38 sets forth the procedures governing
retention elections. First, a “justice or judge of the supreme court or an
intermediate appellate court” must file “a declaration of his desire to be
retained in office” before “the expiration of his term of office.” Ariz. Const.
art. 6, § 38(A). The secretary of state must then “certify to the several boards
of supervisors the appropriate names of the candidate or candidates
appearing on such declarations filed in his office.” Id. The names of the
judges running for retention then appear “on the appropriate official ballot
at the next regular general election,” as a yes or no question on whether the
judge should be retained in office. Id. § 38(B). If a judge “fails to file a
declaration of his desire to be retained in office,” id. § 38(E), or if “a majority
of those voting on the question votes ‘No’” on retaining the judge, id.
§ 38(C), then the judge’s “office shall become vacant.” Id. § 38(E).

¶8 The first judicial retention election was held in 1976. See A.
John Pelander, Judicial Performance Review in Arizona: Goals, Practical Effects
and Concerns, 30 Ariz. St. L.J. 643, 656–57 (1998); Roll, supra ¶ 7 at 881.
Section 12-120.02 remained largely unchanged 3 until 1994, when the
Legislature added the words “for retention.” See 1994 Ariz. Sess. Laws
ch. 245, § 3 (2d Reg. Sess.). But the voting scheme established by § 12-120.02
has remained unchanged since the court of appeals’ conception in 1964.
Compare 1964 Ariz. Sess. Laws ch. 102, § 1 (2d Reg. Sess.) with § 12-120.02.
Currently, § 12-120.02 provides:

3 The Legislature amended § 12-120.02 several times to reflect expansions
to the court. See 1969 Ariz. Sess. Laws ch. 48, § 3 (1st Reg. Sess.); 1973 Ariz.
Sess. Laws ch. 147, § 5 (1st Reg. Sess.); 1981 Ariz. Sess. Laws ch. 185, § 3 (1st
Reg. Sess.); 1984 Ariz. Sess. Laws ch. 198, § 2 (2d Reg. Sess.); 1988 Ariz. Sess.
Laws ch. 38, § 3 (2d Reg. Sess.); see also 2022 Ariz. Sess. Laws ch. 310, § 3 (2d
Reg. Sess.).
4
KNIGHT V. FONTES
Opinion of the Court

A. In division 1, of the nineteen judges, ten of the judges shall
be residents of and elected for retention from Maricopa
county, five of the judges shall be residents of the remaining
counties in the division and shall be elected for retention by
the voters of the counties in division 1, excluding Maricopa
county, and four of the judges shall be at-large judges and be
residents of any county in the division. If an at-large judge is
a resident of Maricopa county, the judge shall be elected for
retention by the voters of Maricopa county. If an at-large
judge is not a resident of Maricopa county, the judge shall be
elected for retention by the voters of the counties in division
1, excluding Maricopa county.

B. In division 2, of the nine judges, four of the judges shall be
residents of and elected from Pima county, two of the judges
shall be residents of the remaining counties in the division
and shall be elected by the voters of the counties in division 2,
excluding Pima county, and three of the judges shall be
at-large judges and be residents of any county in the division.
If an at-large judge is a resident of Pima county, the judge
shall be elected for retention by the voters of Pima county. If
an at-large judge is not a resident of Pima county, the judge
shall be elected for retention by the voters of the counties in
division 2, excluding Pima county.

II.

¶9 Plaintiffs Bonnie Knight, Deborah McEwen, Sarah Ramsey,
and Leslie White are registered Arizona voters each residing in different
geographic voting districts under § 12-120.02. In January 2024, Plaintiffs
filed a special action complaint against Arizona Secretary of State Adrian
Fontes and the State of Arizona (collectively, the “State”). Plaintiffs alleged
that § 12-120.02 violates the Free and Equal Elections Clause and the Equal
Privileges and Immunities Clause of the Arizona Constitution. Specifically,
Plaintiffs argued that because the court of appeals “issues appellate
decisions and opinions that are binding statewide,” voters statewide should
be permitted to participate in a court of appeals judge’s retention election
rather than limiting participation to only the voters who live in the judge’s
county of residence and, in certain instances, other counties within the

5
KNIGHT V. FONTES
Opinion of the Court

applicable division. Plaintiffs sought declaratory and injunctive relief and
specifically asked the court to order the Secretary of State to certify that all
court of appeals judges up for retention in 2024 be placed on the ballot
statewide.

¶10 The State moved to dismiss the complaint, arguing that
Plaintiffs lacked standing, the statute is constitutional, and mandamus is an
improper remedy. Plaintiffs then moved for summary judgment, but the
court held the motion in abeyance until it ruled on the motion to dismiss.

¶11 After oral argument, the superior court granted the State’s
motion to dismiss. First, the court held that § 12-120.02 does not violate the
Free and Equal Elections Clause. It noted that “there are no allegations
about votes not being properly counted, ballot access restrictions,
intimidation or threats of violence, or any other influence that would deter
a voter from exercising free will, or that each vote is not given the same
weight as every other ballot.” Accordingly, the court only addressed
Plaintiffs’ argument that the statute treats voters unequally by denying
them the right to vote in some court of appeals retention elections. The
court explained that because “[n]o voter is completely denied the right to
vote,” the issue is whether the current retention election scheme under
§ 12-120.02 is “equal” under the Free and Equal Elections Clause. The court
rejected Plaintiffs’ argument that the “statewide jurisdiction” of the court
of appeals mandates a statewide electorate, reasoning that the
Constitution’s design provides that not all voters will get to vote on all
judges. See Ariz. Const. art. 6, §§ 3, 13, 20.

¶12 The court also held that the statute did not violate the Equal
Privileges and Immunities Clause. Relying on Craven v. Huppenthal,
236 Ariz. 217, 220 (App. 2014), the court determined that it “need not reach
or decide whether the [s]tatute withstands any scrutiny, rational basis or
strict” because the statute “treats all similarly situated voters in their
respective counties equally” and no “class is treated differently from
another similarly situated class.” Finally, the superior court held that
mandamus relief was improper and that it need not address standing.
Plaintiffs timely appealed.

¶13 We granted Plaintiffs’ petition to transfer the appeal from the
court of appeals pursuant to Arizona Rules of Civil Appellate Procedure

6
KNIGHT V. FONTES
Opinion of the Court

19(a). We have jurisdiction pursuant to article 6, section 5(3) of the Arizona
Constitution.

DISCUSSION

¶14 “We review the dismissal of a complaint under Rule 12(b)(6)
de novo.” Satamian v. Great Divide Ins. Co., 257 Ariz. 163, 169 ¶ 10 (2024).
Dismissal is appropriate if “as a matter of law . . . plaintiffs would not be
entitled to relief under any interpretation of the facts susceptible of proof.”
CVS Pharmacy, Inc. v. Bostwick, 251 Ariz. 511, 515–16 ¶ 10 (2021) (alteration
in original) (quoting Fid. Sec. Life Ins. Co. v. Ariz. Dep’t of Ins., 191 Ariz. 222,
224 ¶ 4 (1998)). Finally, this Court reviews legal and constitutional
questions de novo. Fann v. State, 251 Ariz. 425, 432 ¶ 17 (2021).

¶15 Plaintiffs argue that § 12-120.02 violates the Free and Equal
Elections Clause, Ariz. Const. art. 2, § 21, and the Equal Privileges and
Immunities Clause, Ariz. Const. art. 2, § 13. Before considering these
claims, we address the State’s argument that Plaintiffs lack standing. The
State argues that Plaintiffs have not suffered a concrete and particularized
injury. We disagree. There are circumstances where this Court is more
likely to require an aggrieved party to show a particularized injury to
establish standing, such as in disputes among branches of government. See
Montenegro v. Fontes, 576 P.3d 692, 699 ¶ 28 (Ariz. 2025). Nevertheless, “[i]n
Arizona, standing is a prudential consideration rather than a jurisdictional
one.” Biggs v. Cooper ex rel. County of Maricopa, 236 Ariz. 415, 418 ¶ 8 (2014);
State v. B Bar Enters., Inc., 133 Ariz. 99, 101 n.2 (1982) (“Arizona has no
analog to the case or controversy provision in its [C]onstitution, and our
reluctance to consider issues raised where there is no standing is solely a
rule of judicial restraint.”). Though we are not bound by federal standing
jurisprudence, we regard it as instructive. Bennett v. Napolitano, 206 Ariz.
520, 524 ¶ 22 (2003); Brush & Nib Studio, LC v. City of Phoenix, 247 Ariz. 269,
280 ¶ 36 (2019).

¶16 Plaintiffs here allege an impairment or denial of their right to
vote. The “right to vote is ‘individual and personal in nature,’” and alleging
impairment or denial of this right gives rise to standing. Gill v. Whitford,
585 U.S. 48, 65 (2018) (quoting Reynolds v. Sims, 377 U.S. 533, 561 (1964));
Baker v. Carr, 369 U.S. 186, 207–08 (1962) (concluding that vote dilution is a
redressable injury); A.R.S. § 12-1832 (“Any person . . . whose rights . . . are
affected by a statute . . . may have determined any question of . . . validity

7
KNIGHT V. FONTES
Opinion of the Court

arising under the . . . statute . . . and obtain a declaration of
rights . . . thereunder.”). Standing to bring a constitutional claim does not
depend on the ultimate success of that claim. Baker, 369 U.S. at 207–08;
Montenegro, 576 P.3d at 700 ¶ 38. If § 12-120.02 violates the Constitution by
impairing the right to vote, Plaintiffs are among those who would be
injured by such violation. See Baker, 369 U.S. at 208. Moreover, we are
inclined to address the merits of this case because it presents a “question of
great public importance,” Fraternal Order of Police Lodge 2 v. Phx. Emp. Rel.
Bd., 133 Ariz. 126, 127 (1982), that involves “a dispute at the highest levels
of state government,” Rios v. Symington, 172 Ariz. 3, 5 (1992); see also
Goodyear Farms v. City of Avondale, 148 Ariz. 216, 217 n.1 (1986).

I. Free and Equal Elections Clause

¶17 “[W]here the [C]onstitution specifically addresses the
particular subject at issue, we must address that specific provision
first. . . . We need not resort to the less specific provision unless the
argument based upon the more specific fails.” Roosevelt Elementary Sch.
Dist. No. 66 v. Bishop, 179 Ariz. 233, 238 (1994) (citing Albright v. Oliver, 510
U.S. 266, 273 (1994)); Clouse ex rel. Clouse v. State, 199 Ariz. 196, 199 ¶ 11
(2001). We therefore turn first to Plaintiffs’ Free and Equal Elections Clause
claim.

¶18 The Free and Equal Elections Clause provides that “[a]ll
elections shall be free and equal, and no power, civil or military, shall at any
time interfere to prevent the free exercise of the right of suffrage.” Ariz.
Const. art. 2, § 21. Plaintiffs argue that § 12-120.02 violates the Free and
Equal Elections Clause in two ways: first, they argue that individual voters
are disenfranchised in the retention elections of judges outside their county;
second, they argue that the weight and impact of each vote is unequal.
Because the Free and Equal Elections Clause has no federal analog and this
Court has not previously interpreted the provision, our first task is to
determine the meaning of our Constitution’s mandate that elections be
“free and equal.”

¶19 “When interpreting the scope and meaning of a constitutional
provision, we are guided by fundamental principles of constitutional
construction.” Jett v. City of Tucson, 180 Ariz. 115, 119 (1994). “The
governing principle of constitutional construction is to give effect to the
intent and purpose of the framers of the constitutional provision and of the

8
KNIGHT V. FONTES
Opinion of the Court

people who adopted it.” Apache County v. Sw. Lumber Mills, Inc., 92 Ariz.
323, 327 (1962). We start with the plain meaning of the constitutional text.
Ariz. Free Enter. Club v. Hobbs, 253 Ariz. 478, 482 ¶ 10 (2022). We interpret a
constitutional provision in its broader context and aim to give effect to
every word such that no word or provision is rendered superfluous. Burns
v. Ariz. Pub. Serv. Co., 254 Ariz. 24, 30 ¶ 23 (2022). “When the language of a
provision is clear and unambiguous, we apply it without resorting to other
means of constitutional construction.” Heath v. Kiger, 217 Ariz. 492, 494 ¶ 6
(2008). But if the language is ambiguous, “we will examine secondary
principles to identify the correct interpretation.” State ex rel. Brnovich v. City
of Phoenix, 249 Ariz. 239, 244 ¶ 21 (2020). “Ambiguity occurs when
uncertainty exists about the meaning or interpretation of a provision’s
terms.” Heath, 217 Ariz. at 494 ¶ 6.

¶20 The Arizona Constitution does not define the terms “free” or
“equal.” “When the Arizona Constitution does not define its terms, we look
to their natural, obvious, and ordinary meaning, and our focus is on their
meaning at the time the Constitution was adopted.” State v. Mixton, 250
Ariz. 282, 290 ¶ 33 (2021) (cleaned up). At statehood, “free” was defined as
“[u]nconstrained; having power to follow the dictates of his own will,” or
“[a]vailable to all citizens alike without charge.” Free, Black’s Law
Dictionary (2d ed. 1910); see also Free, Webster’s Practical Dictionary (1910)
(“Not under restraint, control or compulsion; . . . unconstrained by timidity
or distrust; unrestrained; . . . not obstructed or appropriated.”); Free, New
Websterian (1912) (“[W]ithout restraint; at liberty.”). And “equal” was
defined as “[a]like; uniform; on the same plane or level with respect to
efficiency, worth, value, amount, or rights.” Equal, Black’s Law Dictionary
(2d ed. 1910); see also Equal, Webster’s Practical Dictionary (1910) (“Having
the same magnitude, dimensions, value, degree, etc.; . . . equable; not
unduly inclining to either side; uniform; fair; just; equitable.”); Equal, New
Websterian (1912) (“[O]f the same extent, or magnitude; uniform; adequate;
of the same rank, degree, or value; just; parallel.”).

¶21 These definitions suggest that a “free” election is one in which
voters can exercise their will unconstrained by coercion, physical force, or
intimidation, and that an “equal” election is one in which all voters have
similar voting rights in kind and quality. This understanding comports
with the two Arizona cases that have examined the Free and Equal Elections
Clause.

9
KNIGHT V. FONTES
Opinion of the Court

¶22 The first Arizona case interpreting this constitutional
provision is Chavez v. Brewer, 222 Ariz. 309, 319 ¶ 32 (App. 2009). The
appellants in Chavez alleged that two of the voting machines the Secretary
of State selected for use in future elections were inaccessible and unreliable.
Id. at 313 ¶ 8. Thus, they argued that the Secretary of State’s selection of
these machines violated the Free and Equal Elections Clause because
“requir[ing] some voters to vote on such a flawed and insecure system
while others vote on a safer, more accurate system would result in a
drastically unequal election.” Id. at 319 ¶ 30 (alteration in original).
Looking to cases from Illinois, Kentucky, and New Mexico, the court of
appeals noted:

Other states with similar constitutional provisions have
generally interpreted a “free and equal” election as one in
which the voter is not prevented from casting a ballot by
intimidation or threat of violence, or any other influence that
would deter the voter from exercising free will, and in which
each vote is given the same weight as every other ballot.

Id. at 319 ¶ 33. Based on these other states’ cases, the court of appeals
concluded that “Arizona’s constitutional right to a ‘free and equal’ election
is implicated when votes are not properly counted.” Id. at 320 ¶ 34.

¶23 The second case dealing with Arizona’s Free and Equal
Elections Clause is State ex rel. Brnovich v. City of Tucson, 251 Ariz. 45, 53 ¶ 33
(2021). The question there was “whether the subject matter of the City’s
charter and Ordinance—conducting off-cycle municipal elections—is a
matter of purely municipal concern or is also one of statewide interest.” Id.
at 49 ¶ 19. As part of its argument that the subject of off-cycle municipal
elections was of statewide interest, the state asserted that “low turnouts
adversely affect the fundamental right to vote guaranteed by our [S]tate and
[F]ederal [C]onstitutions.” Id. at 52 ¶ 30. While the Free and Equal Election
Clause played a minimal role in our decision in Brnovich, we stated that
“[t]he fundamental right to vote guarantees that voters will ‘participate in
state elections on an equal basis with other qualified voters,’” and cited to
the Free and Equal Elections Clause as additional support for this
statement. Id. (quoting Ariz. Minority Coal. for Fair Redistricting v. Ariz.
Indep. Redistricting Comm’n, 211 Ariz. 337, 345–46 ¶ 23 (App. 2005), an equal
protection case). We further noted that the state “point[ed] to nothing about
off-cycle elections that erects barriers to voting or treats voters unequally,”

10
KNIGHT V. FONTES
Opinion of the Court

citing to Chavez’s analysis of other states’ cases as authority. Brnovich, 251
Ariz. at 52 ¶ 30. Thus, we rejected the state’s argument because low voter
turnout “does not deprive those voters of their constitutional right to vote.”
Id.

¶24 Arizona is not the only state with a Free and Equal Elections
Clause in its Constitution. The Washington constitution was adopted in
1889 and contains a provision identical to Arizona’s Free and Equal
Elections Clause. See Wash. Const. art. I § 19 (“All elections shall be free
and equal, and no power, civil or military, shall at any time interfere to
prevent the free exercise of the right of suffrage.”). And this Court has
stated that “if the provisions of another state’s constitution are similar in
nature and meaning to provisions in Arizona’s Constitution, then the
decisions of the judiciary in those states should be considered ‘very
persuasive’ in interpreting Arizona’s similar provision.” Dickey ex rel.
Dickey v. City of Flagstaff, 205 Ariz. 1, 4 ¶ 16 (2003) (quoting Faires v.
Frohmiller, 49 Ariz. 366, 372 (1937)); see also State v. Soto-Fong, 250 Ariz. 1, 11
¶ 43 (2020); Barth v. White, 40 Ariz. 548, 551 (1932); State v. Osborn, 16 Ariz.
247, 250 (1914).

¶25 In Washington, the court of appeals is divided into districts
made up of one or more counties, and each of these districts elects a set
number of judges to the court of appeals, similar to the way Arizona’s court
of appeals is structured. Compare Wash. Rev. Code §§ 2.06.020, 2.06.070,
2.06.075, and 2.06.076 with A.R.S. § 12-120.02. In Eugster v. State, 259 P.3d
146, 147–48 ¶ 1 (Wash. 2011), the appellant argued that Washington’s
process of electing its court of appeals judges violated the state
constitutional provision requiring that “[a]ll [e]lections shall be free and
equal.” In rejecting appellant’s claim, the Washington Supreme Court
concluded that its “cases have never held that [the free and equal elections
clause] requires substantial numerical equality between voting districts.”
Id. at 150 ¶ 10. Rather, the supreme court has interpreted Washington’s free
and equal elections provision as “prohibiting the complete denial of the
right to vote to a group of affected citizens” and concluded that there was
no constitutional violation because “every Washington voter has the
opportunity to vote for at least one Court of Appeals judge.” Id.; City of
Seattle v. State, 694 P.2d 641, 647 (Wash. 1985) (noting that the provision
“require[s] that otherwise qualified voters who are significantly affected by
the results of an election be given an opportunity to vote in that election”).

11
KNIGHT V. FONTES
Opinion of the Court

¶26 Likewise, we conclude that the Free and Equal Elections
Clause is implicated when voters are disenfranchised, see Eugster, 259 P.3d
at 150 ¶ 10; Brnovich, 251 Ariz. at 52 ¶ 30, or when votes are given unequal
weight, see Chavez, 222 Ariz. at 319 ¶ 33.

A.

¶27 Plaintiffs argue that § 12-120.02 disenfranchises Arizona
voters by denying them “the right to vote on the retention of Court of
Appeals judges with appellate jurisdiction over them.” This argument
alleges, for example, that because residents of Yuma County cannot vote on
the retention of court of appeals judges residing in Pima County, residents
of Yuma County are disenfranchised as to the retention election of each
court of appeals judge residing in Pima County that may decide matters
affecting Yuma County residents.

¶28 As noted above, the Free and Equal Elections Clause is
implicated when there is a “complete denial of the right to vote.” See
Eugster, 259 P.3d at 150 ¶ 10. Plaintiffs’ disenfranchisement argument thus
presumes that there is an underlying right to vote in every court of appeals
judge’s retention election. See Arizonans for Second Chances, Rehabilitation, &
Pub. Safety v. Hobbs, 249 Ariz. 396, 414 ¶ 66 (2020) (refuting the notion that
the decision “disenfranchises Arizonans from voting in initiative elections”
because there is no “right to vote on every initiative”); Disenfranchisement,
Black’s Law Dictionary (12th ed. 2024) (“The act of taking away the right to
vote in public elections from a citizen or class of citizens.” (emphasis
added)). While it is true that the right to vote for judges is deeply rooted in
Arizona’s history, see Ariz. Free Enter. Club, 253 Ariz. at 491 ¶ 46 & n.6
(Montgomery, J., dissenting) (detailing this history), and the Constitution
acknowledges that court of appeals judges must stand for retention, see
Ariz. Const. art. 6, § 38(A), Plaintiffs point to no constitutional provision
that guarantees a right to vote for every court of appeals judge.

¶29 Plaintiffs make several arguments as to why “statewide
jurisdiction” should require statewide retention. For example, court of
appeals decisions have statewide precedential value that impacts all
citizens of the state; a party appearing before the court of appeals may have
their case decided by judges outside their voting district who they cannot
vote to retain, see A.R.S. § 12-120(E); and the Arizona Court of Appeals,
Division One is statutorily tasked with handling all appeals from the tax

12
KNIGHT V. FONTES
Opinion of the Court

court, see A.R.S. § 12-170(C), and the industrial commission, see A.R.S.
§ 12-120.21(B), regardless of where the parties reside. While these may be
compelling policy arguments, they carry no constitutional significance.
Nothing in the Constitution suggests that a judge’s jurisdiction over an
individual gives that individual an affirmative right to vote for that judge.

¶30 In fact, adopting this rationale would contradict other
constitutional provisions that assign retention elections based on
geographical boundaries or authorize judges to serve without participating
in a retention election. See Ariz. Const. art. 6, §§ 3, 20. For example,
article 6, section 20 provides that “[a]ny retired justice or judge of any court
of record who is drawing retirement pay may serve as a justice or judge of
any court.” And article 6, section 3 provides that the chief justice “may
assign judges of intermediate appellate courts, superior courts, or courts
inferior to the superior court to serve in other courts or counties.” A retired
or visiting judge serving as a court of appeals judge is not subject to
retention and yet exercises “statewide jurisdiction.” Thus, the Constitution
does not require that every judge serving on the court of appeals must stand
for retention before every voter.

¶31 Moreover, Arizona superior courts “constitute a single court,
composed of all the duly elected or appointed judges in each of the counties
of the state,” Ariz. Const. art. 6, § 13, and constitute a “single unified trial
court of general jurisdiction,” Marvin Johnson, P.C. v. Myers, 184 Ariz. 98,
102 (1995), just as the court of appeals “constitutes a single court,” A.R.S.
§ 12-120(A). Indeed, “[t]he judgments, decrees, orders and proceedings of
any session of the superior court held by one or more judges shall have the
same force and effect as if all the judges of the court had presided,” and
“[t]he process of the court shall extend to all parts of the state.” Ariz. Const.
art. 6, § 13. However, superior court judges serving in counties with a
population of 250,000 are “subject to retention or rejection by a vote of the
qualified electors of the county from which they were appointed.” Ariz. Const.
art. 6, § 37(B) (emphasis added).

¶32 “We do not read separate constitutional provisions to
determine which prevails over the other; rather, we read them to harmonize
the provisions and give effect to each.” Burns, 254 Ariz. at 31 ¶ 30.
Harmonizing these constitutional provisions leads us to reject Plaintiffs’
assertion that a judge’s statewide jurisdiction mandates a right to vote in all
court of appeals judicial retention elections.

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Opinion of the Court

¶33 Plaintiffs additionally argue that because article 6, section 38
requires court of appeals judges, like supreme court justices, to file their
judicial retention form with the secretary of state—a statewide elected
officer—the Constitution thus “makes it very clear” that court of appeals
judges must stand for statewide retention. See Ariz. Const. art. 6, § 38(A).
Not so.

¶34 Plaintiffs overstate the significance of the retention filing
forum. The office where a judge must file his or her retention
form—whether the secretary of state’s office or the clerk of the board of
supervisors in the county where the superior court sits—at best provides
an anecdotal inference of statewide jurisdiction. When voters passed the
initiative adding article 6, section 38 to the Constitution in 1974, the
geographic voting districts in § 12-120.02 had already been in place for ten
years. See supra ¶¶ 5–6. We presume that voters were aware of how court
of appeals judges were elected when they passed the initiative adding
article 6, section 38 to the Constitution. Cf. Daou v. Harris, 139 Ariz. 353, 357
(1984) (“[W]e presume that the [L]egislature, when it passes a statute,
knows the existing laws.”). Section 38 does not carry the weight Plaintiffs
assign it, and we decline to rest our constitutional interpretation on such
inferences. It is just as likely that court of appeals judges are required to file
their retention paperwork with the secretary of state for administrative
convenience—for a judge standing for retention in multiple counties, as
several court of appeals judges do, filing a judicial retention form with the
secretary of state provides the most efficient way to proceed.

¶35 Without an identifiable right to vote in every court of appeals
judicial retention election, there is no viable claim of disenfranchisement.
No voter is denied the right to vote in the retention elections of judges
within their geographic district. Therefore, Plaintiffs’ disenfranchisement
argument fails.

B.

¶36 Plaintiffs additionally argue that “voters are treated
unequally with regard to the weight and impact of their votes on the Court
of Appeals as a whole.” Specifically, Plaintiffs allege that “the number of
judges in each of the two divisions is not equal,” the judges within each
division “are not equally distributed between urban and rural areas,” and

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“the voting population is not equally distributed throughout the four
areas.” As previously explained, the Free and Equal Elections Clause is
implicated when votes are not given the same weight. See supra ¶¶ 18–26;
see also Brnovich, 251 Ariz. at 52 ¶ 30; Chavez, 222 Ariz. at 319 ¶ 33.

¶37 While Plaintiffs maintain that this is not an apportionment
claim, the argument that votes are given unequal weight is, at bottom, a
vote dilution claim rooted in the one-person, one-vote apportionment
principle, and we address it as such. See Hadley v. Junior Coll. Dist., 397 U.S.
50, 55 (1970) (noting that the “right to equal voting participation is
impaired” when “one person’s vote is given less weight through unequal
apportionment”); Chisom v. Roemer, 501 U.S. 380, 402 n.31 (1991) (“The
‘one-person, one-vote’ principle . . . has been interpreted to mean that ‘each
person’s vote counts as much, insofar as it is practicable, as any other
person’s.’” (quoting Hadley, 397 U.S. at 54)); Reynolds, 377 U.S. at 555 (“[T]he
right of suffrage can be denied by a debasement or dilution of the weight of
a citizen’s vote just as effectively as by wholly prohibiting the free exercise
of the franchise.”).

¶38 The one-person, one-vote apportionment principle as applied
to state and local elections arises out of the Federal Equal Protection Clause,
which guarantees that in all popular elections for representative
government officials, each vote will be given “substantially equal weight.”
Avery v. Midland County, 390 U.S. 474, 476, 478 (1968); Reynolds, 377 U.S.
at 568 (“The Equal Protection Clause demands no less than substantially
equal state legislative representation for all citizens . . . .”); Hadley, 397 U.S.
at 56 (explaining that the “general rule” is that one-person, one-vote
apportionment is required “whenever a state or local government decides
to select persons by popular election to perform governmental functions”).
In apportionment controversies, “[p]opulation is, of necessity, the starting
point for consideration and the controlling criterion for judgment.”
Reynolds, 377 U.S. at 567; Avery, 390 U.S. at 478–79 (holding that the Equal
Protection Clause “forbids the election of local government officials from
districts of disparate population”).

¶39 However, the United States Supreme Court has
acknowledged that the one-person, one-vote apportionment principle does
not apply to judicial elections. See Wells v. Edwards, 347 F. Supp. 453, 454–55
(M.D. La. 1970) (“[W]e hold that the concept of one-man, one-vote
apportionment does not apply to the judicial branch of the government.”),

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Opinion of the Court

aff’d, 409 U.S. 1095 (1973); Chisom, 501 U.S. at 402 (stating that “we have held
the one-person, one-vote rule inapplicable to judicial elections” in the
context of “a constitutional challenge based on the Equal Protection Clause
of the Fourteenth Amendment”) (citing Wells, 347 F. Supp. at 454); id. at 415
(Scalia, J., dissenting) (“[W]e ha[ve] held that the principle of ‘one person,
one vote’ does not apply to the election of judges.” (citing Wells, 347 F.
Supp. 453)).

¶40 In Wells, a registered Louisiana voter filed suit “seeking a
reapportionment of the judicial districts from which the seven Justices of
the Supreme Court of the State of Louisiana are elected . . . in accordance
with the one-man, one-vote principle.” 47 F. Supp. at 454. The court
explained that “the rationale behind the one-man, one-vote
principle . . . evolved out of efforts to preserve a truly representative form
of government” and ensures that “each official member of an elected body
speaks for approximately the same number of constituents.” Id. at 455.
Because judges are not “representatives,” as Plaintiffs concede, the
one-person, one-vote apportionment principle “is simply not relevant to the
makeup of the judiciary.” Id.; Chisom, 501 U.S. at 411 (Scalia, J., dissenting)
(“It is precisely because we do not ordinarily conceive of judges as
representatives that we held judges not within the Fourteenth
Amendment’s requirement of ‘one person, one vote.’” (citing Wells, 347 F.
Supp. 453)). Thus, under the rationale in Wells, we conclude one-person,
one-vote does not apply to judicial retention elections under Arizona’s
merit selection system.

¶41 Additionally, as noted above, neither the text nor the history
of Arizona’s Free and Equal Elections Clause supports Plaintiffs’ claim that
they have the right to vote in all judicial retention elections for judges that
exercise statewide jurisdiction, and Plaintiffs do not provide any case law
that supports this claim. Moreover, applying this argument to article 2,
section 21 would ignore or contradict other constitutional provisions that
assign retention elections based on geographical boundaries and authorize
judges to serve on the court of appeals without needing to participate in
retention elections. See Ariz. Const. art. 6, §§ 3, 20.

¶42 In sum, the electorate for court of appeals retention elections
need not be statewide because there is no underlying right to vote in every
court of appeals judge’s retention election, and thus the mere creation of
geographic voting districts does not disenfranchise any voter. Geographic

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Opinion of the Court

voting districts, once created, do not have to be apportioned based on
population because the one-person, one-vote principle does not apply to
the judiciary. Therefore, Plaintiffs’ claim under the Free and Equal
Elections Clause fails.

II. Equal Privileges and Immunities Clause

¶43 We turn next to the Plaintiffs’ claim based on the Equal
Privileges and Immunities Clause. Arizona’s Equal Privileges and
Immunities Clause provides: “No law shall be enacted granting to any
citizen, class of citizens, or corporation other than municipal, privileges or
immunities which, upon the same terms, shall not equally belong to all
citizens or corporations.” Ariz. Const. art. 2, § 13. While we acknowledge
that article 2, section 13 textually differs from the Equal Protection Clause
in the Fourteenth Amendment, see U.S. Const. amend. XIV, § 1, we have
construed our state provision “as applying the same standard as applies to
equal protection claims under the [F]ederal [C]onstitution.” Coleman v. City
of Mesa, 230 Ariz. 352, 361 ¶ 39 (2012); Valley Nat’l Bank of Phx. v. Glover, 62
Ariz. 538, 554–55 (1945) (“The [E]qual [P]rotection [C]lauses of the 14th
Amendment and the [S]tate [C]onstitution have for all practical purposes
the same effect.”); see also Chavez, 222 Ariz. at 320 ¶ 35; Ariz. Minority Coal.
for Fair Redistricting, 211 Ariz. at 345 n.10.

¶44 To establish an Equal Privileges and Immunities violation
under the Arizona Constitution, a party must first establish “that it was
treated differently than those who are similarly situated.” Waltz Healing
Ctr., Inc. v. Ariz. Dep’t of Health Servs., 245 Ariz. 610, 616 ¶ 24 (App. 2006).
Stated another way, “[e]qual protection guarantees are satisfied ‘if all
persons in a class are treated alike.’” Craven v. Huppenthal, 236 Ariz. 217,
220 ¶ 16 (App. 2014) (quoting Ariz. State Tax Comm’n v. Frank Harmonson Co.
Metal Prods., 63 Ariz. 452, 459 (1945)). “The [E]qual [P]rotection [C]lauses
of the [F]ederal and [S]tate [C]onstitutions do not prohibit all inequality of
treatment, but only require that all persons in a given class be treated
equally and that the classification be reasonable and not arbitrary or
capricious.” Shelby Sch. v. Ariz. State Bd. of Educ., 192 Ariz. 156, 169 ¶ 65
(App. 1998).

¶45 Plaintiffs argue that the classification created by § 12-120.02
violates the Equal Privileges and Immunities Clause because it
“discriminates among voters based on residency” such that “the right to

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Opinion of the Court

vote in retention elections for the Court of Appeals does ‘not equally belong
to all citizens.’” But as we have already explained, there is no constitutional
right to vote in every court of appeals judge’s retention election. See supra
¶¶ 28–35. Because there is no underlying right to vote in every court of
appeals retention election, Plaintiffs’ Equal Privileges and Immunities claim
must rise or fall on an assertion that § 12-120.02 creates a classification based
on residency, treats members of classes differently, and that such difference
in treatment is constitutionally prohibited.

¶46 Section 12-120.02 classifies individuals based on residency
and treats classes of individuals differently insofar as it affords an
opportunity to vote on a greater or lesser number of court of appeals judges
according to residency. For example, under § 12-120.02(A), depending on
the composition of the court, residents of Maricopa County get to vote in
the retention election of from ten to fourteen court of appeals judges, while
residents of the remaining counties in division 1 get to vote for from five to
nine court of appeals judges. See supra ¶ 8. “However, it is not always a
denial of equal protection when the state treats different classes of
individuals in different ways.” Big D Constr. Corp. v. Court of Appeals, 163
Ariz. 560, 565 (1990); see also, e.g., Personnel Adm’r v. Feeney, 442 U.S. 256, 271
(1979) (“The equal protection guarantee of the Fourteenth Amendment
does not take from the States all power of classification.”); Romer v. Evans,
517 U.S. 620, 631 (1996) (“The Fourteenth Amendment’s promise that no
person shall be denied the equal protection of the laws must coexist with
the practical necessity that most legislation classifies for one purpose or
another, with resulting disadvantage to various groups or persons.”).

¶47 As observed previously, see supra ¶ 42, the Legislature has
broad powers to establish voting districts for the court of appeals retention
elections because one-person, one-vote principles do not apply to the
judiciary. See Ariz. Const. art. 6, § 9 (“The jurisdiction, powers, duties and
composition of any intermediate appellate court shall be as provided by
law.”); id. art. 4, pt. 1, § 1. At bottom, Plaintiffs’ claims of differential
treatment are rooted in one-person, one-vote principles which do not apply
to the judiciary and thus cannot be used to show differential treatment.
Moreover, the United States Supreme Court has held that “the Equal
Protection Clause relates to equality between persons as such, rather than
between areas and that territorial uniformity is not a constitutional
prerequisite.” McGowan v. Maryland, 366 U.S. 420, 427 (1961) (emphasis
added); see also Missouri v. Lewis, 101 U.S. 22, 31 (1879) (reasoning that equal

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Opinion of the Court

protection under the Fourteenth Amendment “means that no person or
class of persons shall be denied the same protection of the laws which is
enjoyed by other persons or other classes in the same place and under like
circumstances”).

¶48 Section 12-120.02 treats all voters within a geographic voting
district the same way. See City of Tucson v. Pima County, 199 Ariz. 509, 518
¶¶ 28–29 (App. 2001) (concluding that requiring communities in
“urbanized areas” to get the City’s consent to hold an election did not
violate the Equal Protection Clause because “[a]ll persons within the area
which is the object of incorporation [were] treated equally”). Here, all
voters are similarly restricted to voting for judges based on geography
rather than jurisdiction, and simply being affected by a judge’s authority
does not create the right to vote for that judge’s retention. See Wells, 347 F.
Supp. at 455–56. Thus, because all voters within a geographic voting
district are similarly situated and treated equally, § 12-120.02 does not
violate Arizona’s Equal Privileges and Immunities Clause. Additionally,
because the Plaintiffs did not allege that § 12-120.02 treats voters within
separate voting districts differently, or voters within one voting district
differently, they failed to allege a constitutional violation, and we need not
subject the statute to any form of scrutiny.

¶49 Given the Legislature’s broad powers to dictate the
“jurisdiction, powers, duties and composition” of the court of appeals, see
Ariz. Const. art. 6, § 9, we do not lightly interfere with the voting districts
established by the Legislature over sixty years ago that have been in place
since the creation of the court of appeals. See Matthews v. Indus. Comm’n,
254 Ariz. 157, 163 ¶ 29 (2022); Seisinger v. Siebel, 220 Ariz. 85, 92 ¶ 26 (2009)
(“The [L]egislature has plenary power to deal with any topic unless
otherwise restrained by the Constitution.”); Ariz. Const. art. 4, pt. 1, § 1.

CONCLUSION

¶50 For the foregoing reasons, we affirm the superior court’s
order dismissing the claim.

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