SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
2. The Burden Of Proof In An Election Contest.
A.R.S. § 16-672 specifies five grounds on which an election may be contested, three of which are alleged here:
A. Any elector of the state may contest the election of any person declared elected to a state office, or declared nominated to a state office at a primary election, or the declared result of an initiated or referred measure, or a proposal to amend the Constitution of Arizona, or other question or proposal submitted to vote of the people, upon any of the following grounds:
1. For misconduct on the part of election boards or any members thereof in any of the counties of the state, or on the part of any officer making or participating in a canvass for a state election.
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4. On account of illegal votes.
5. That by reason of erroneous count of votes the person declared elected or the initiative or referred measure, or proposal to amend the constitution, or other question or proposal submitted, which has been declared carried, did not in fact receive the highest number of votes for the office or a sufficient number of votes to carry the measure, amendment, question or proposal.
A.R.S. § 16-672(A)(1). Arizona law provides two remedies for a successful election contest. One is setting aside the election. A.R.S. § 16-676(B). The other is to declare the other candidate the winner if “it appears that a person other than the contestee has the highest number of legal votes.” A.R.S. § 16-676(C).
The Plaintiff in an election contest has a high burden of proof and the actions of election officials are presumed to be free from fraud and misconduct. See Hunt v. Campbell, 19 Ariz. 254, 268, 169 P. 596, 602 (1917) (“the returns of the election officers are prima facie correct and free from the imputation of fraud”); Moore v. City of Page, 148 Ariz. 151, 156, 713 P.2d 813, 818 (App. 1986) (“One who contests an election has the burden of proving that if illegal votes were cast the illegal votes were sufficient to change the outcome of the election.”). A plaintiff alleging misconduct must prove that the misconduct rose to the level of fraud, or that the result would have been different had proper procedures been used. Moore, 148 Ariz. at 159, 713 P.2d
