Veteran Yuma state senator Don Shooter will have a foe in the Aug. 26 Republican primary.
In a brief order Friday, the Arizona Supreme Court refused to overturn a trial judge's ruling that there was no evidence that Toby Farmer was responsible for forged signatures on his nominating petition. Maricopa County Superior Court Judge John Rea had ruled that, without such proof, he could not disqualify the Buckeye residents from challenging Shooter.
The survivor will face off against Democrat Terri Woodmansee.
Shooter said he was disappointed in the ruling — and not only because he has a primary battle. He said the decision points up a gap in state election laws.
Whether the justices see it that way, however, remains to be seen.
They did not explain why they rejected Shooter's bid to overturn Rea's ruling, but they promised a full explanation at some point in the future, an explanation that may determine if there are gaps in state election laws.
Friday's ruling may not be the end of the matter.
Shooter said he has asked both state and county prosecutors to investigate whether, election laws aside, there is evidence that Farmer knew of the forgeries. Shooter said they told him they would not even look at a criminal investigation until this petition challenge was resolved.
Court defeat aside, Shooter said he intends to make the most of the issue politically with what already has come out.
One is Rea's finding there were, in fact, forgeries among the signatures that Farmer submitted. The second is that Farmer signed the back of the petitions saying he personally collected each of the names.
“He saw the forgeries happen,” Shooter said.
But Rea ruled ¬— and the Supreme Court has confirmed — that is not enough to show that Farmer knew that forgeries were occurring or disqualify Farmer from running.
The judge said that, even after the forged names were removed from the petitions, that still left Farmer with sufficient signatures. And Rea said that, absent some proof Farmer was aware of and condoned the forgeries — there was no allegation he had forged them himself — there was no reason to throw out the entire petition.
One reason that evidence did not exist is that Shooter's lawyer, Tim La Sota, chose not to subpoena Farmer to attend the hearing and force him to testify.
Shooter conceded Friday that "probably'' was a mistake. He said it would have required Farmer to take the stand and swear under oath that he was unaware the names were forged — or invoke his Fifth Amendment right against self incrimination.
Farmer sidestepped questions about why he did not go to court on his own to defend the petitions, saying instead that he saw Shooter's entire challenge as “a political stunt, not a real lawsuit.” He said that was proven by Rea's original decision and Friday's high court ruling upholding that.
But that still leaves the question of whether it ever will be able to knock a candidate off the ballot because of forged signatures.
In the case of initiative petitions, state and county officials take a random sample and check them against voter registration records.
That, however, does not occur in candidate races. Instead, it is up to opponents to review the petitions and, if they feel there are insufficient valid signatures, to file suit. A candidate can be denied ballot access if a court finds that, after forgeries are removed, the number that remains falls short.
That, however, was not the case with Farmer. Instead, Shooter sought to disqualify him based on the premise that Farmer had to know signatures were forged.
Anyone who circulates a petition is required to sign an affidavit avowing that he or she has actually gathered the signatures personally and witnessed the signing.
But there is no requirement for signers to produce identification or for candidates to demand that, and that means it cannot be automatically assumed that someone circulating a petition knew the names being signed and addresses given did not belong to those who actually were signing the sheets.
La Sota, however, argued there was enough circumstantial evidence.
He said this wasn't a case where someone signed a made-up name or gave a fake address. Instead, La Sota said, the names and addresses signed — and witnessed by Farmer as the circulator — were of actual registered voters.
But Rea ruled — and the high court affirmed — that none of that proves that Farmer knew the signers were not who they said they were.