No Statewide Electorate Required: Knight v. Fontes and the Scope of Arizona’s “Free and Equal” Elections Clause

I. Introduction

In Knight v. Fontes, CV-24-0220-T/AP (Ariz. Dec. 4, 2025), the Arizona Supreme Court unanimously upheld the constitutionality of Arizona’s statutory scheme for retention elections of Court of Appeals judges, as set forth in A.R.S. § 12-120.02. Four Arizona voters challenged that scheme under the state constitution’s:

  • Free and Equal Elections Clause (Ariz. Const. art. 2, § 21), and
  • Equal Privileges and Immunities Clause (Ariz. Const. art. 2, § 13).

They argued that because the Arizona Court of Appeals issues decisions with statewide precedential effect, judges of that court must be subject to statewide retention elections, not elections confined to four geographically defined voting districts. They further argued that the current scheme produces unequal voting power and violates state constitutional guarantees of electoral equality.

Justice Beene, writing for a unanimous Court (Chief Justice Timmer, Vice Chief Justice Lopez, and Justices Bolick, Montgomery, King, and Cruz joining), rejected those arguments and affirmed the superior court’s dismissal of the complaint.

The opinion establishes several important propositions:

  • The Arizona Constitution’s Free and Equal Elections Clause does not require that every voter be allowed to vote on the retention of every judge who exercises statewide jurisdiction.
  • The one-person, one-vote apportionment principle—derived from the federal Equal Protection Clause—does not apply to judicial retention elections in Arizona.
  • The Equal Privileges and Immunities Clause is not violated by residency-based voting districts for judicial retention where all voters within each district are treated the same.
  • The Legislature has broad authority under Ariz. Const. art. 6, § 9 to structure the jurisdiction, composition, and election districts of the Court of Appeals.

II. Summary of the Opinion

A. Background and Statutory Scheme

Arizona’s Constitution originally did not contemplate an intermediate appellate court. In 1960, the “Modern Courts Amendment” (amending art. 6) authorized the Legislature to create such a court. In 1964, the Legislature created the Arizona Court of Appeals as a single court divided into two geographic divisions, and then adopted A.R.S. § 12-120.02 to govern the election (now retention) of its judges.

Section 12-120.02 creates four geographic voting districts for the Court of Appeals:

  • Division One
    • Ten judges: residents of Maricopa County, “elected for retention” by Maricopa County voters.
    • Five judges: residents of the other counties in Division One, elected by voters in those counties (excluding Maricopa).
    • Four “at-large” judges: residents of any Division One county; if resident in Maricopa, retained by Maricopa voters; if not, retained by the non-Maricopa counties of Division One.
  • Division Two
    • Four judges: residents of Pima County, elected by Pima County voters.
    • Two judges: residents of the other Division Two counties, elected by voters in those counties (excluding Pima).
    • Three at-large judges: same at-large logic as Division One, based on residence inside or outside Pima County.

When merit selection was adopted by constitutional amendment in 1974 (Prop. 108), contested judicial elections were replaced with gubernatorial appointment from a nominating commission and subsequent retention elections under Ariz. Const. art. 6, § 38. The Legislature amended § 12-120.02 in 1994 to add “for retention,” but otherwise preserved the same geographic voting structure.

B. The Plaintiffs’ Challenge

Four registered Arizona voters, each residing in a different § 12-120.02 geographic district, brought a special action against Secretary of State Adrian Fontes and the State of Arizona. They alleged that:

  • Because the Court of Appeals’ decisions are binding statewide, all Arizona voters should be permitted to vote on the retention of every Court of Appeals judge.
  • Limiting the electorate based on the judge’s county of residence (and division) violates:
    • the Free and Equal Elections Clause, and
    • the Equal Privileges and Immunities Clause.

They sought declaratory and injunctive relief, specifically ordering the Secretary of State to place all Court of Appeals judges up for retention in 2024 on a statewide ballot.

The superior court dismissed, holding that:

  • § 12-120.02 did not violate the Free and Equal Elections Clause because there were no allegations of:
    • improper counting of votes,
    • barriers to casting ballots, or
    • coercion/intimidation.
  • Under the Equal Privileges and Immunities Clause, relying on Craven v. Huppenthal, there was no unequal treatment of similarly situated classes; all voters in each county were treated the same.
  • Mandamus was improper; standing need not be addressed.

Plaintiffs appealed; the Arizona Supreme Court transferred the case to itself and exercised jurisdiction under art. 6, § 5(3).

C. The Supreme Court’s Holding

The Court:

  • Found standing, treating the alleged impairment of the right to vote as a sufficient injury, and noting the prudential (not jurisdictional) nature of standing in Arizona.
  • Rejected the Free and Equal Elections Clause challenge:
    • No disenfranchisement, because there is no underlying constitutional right to vote in the retention election of every Court of Appeals judge.
    • No unconstitutional vote dilution, because the one-person, one-vote principle does not apply to judicial elections under Arizona law.
  • Rejected the Equal Privileges and Immunities challenge:
    • The statute’s residency-based classifications are permissible so long as all persons within each class (each geographic district) are treated alike.
    • The Equal Privileges and Immunities Clause, interpreted in line with federal Equal Protection, does not require territorial uniformity.

Accordingly, the Court affirmed the superior court’s dismissal of the complaint.

III. Detailed Analysis

A. Standing: Voting Rights as a Cognizable Injury

Although the superior court declined to reach standing, the Supreme Court addressed it first, as urged by the State. It reaffirmed that:

  • Standing in Arizona is prudential, not constitutional. Arizona lacks a “case or controversy” analogue, and standing is “a rule of judicial restraint,” not jurisdictional (Biggs v. Cooper; State v. B Bar Enterprises).
  • Federal standing jurisprudence is persuasive but not binding (Bennett v. Napolitano).

The Court then applied federal voting-rights precedents:

  • Gill v. Whitford: the right to vote is “individual and personal in nature.”
  • Baker v. Carr: vote dilution is a redressable injury; standing does not depend on ultimate success on the merits.

Because the plaintiffs alleged impairment or denial of their right to vote in certain retention elections, and because A.R.S. § 12-1832 expressly authorizes any person whose rights are affected by a statute to seek a declaration of its validity, the Court held that they had standing. It also noted the presence of a “question of great public importance,” which further supported reaching the merits.

B. Interpreting the Free and Equal Elections Clause

1. Text, Original Meaning, and Early Arizona Case Law

The Free and Equal Elections Clause provides:

“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.”
— Ariz. Const. art. 2, § 21

The Court followed its established interpretive method:

  • Start with the plain text in its constitutional context.
  • Use original public meaning—dictionary definitions from around the time of statehood (Mixton).
  • Read provisions harmoniously, avoiding interpretations that render any part superfluous (Burns v. APS).

Using 1910-era dictionaries, the Court construed:

  • “Free”: unconstrained; not under restraint, control, or compulsion; available to all citizens alike.
  • “Equal”: alike; uniform; on the same level regarding rights, value, or degree.

From this, the Court concluded:

  • A “free” election is one where voters can exercise their will without coercion, intimidation, or undue influence.
  • An “equal” election is one in which voters enjoy similar rights in kind and quality, and each vote is given comparable weight.

This understanding aligns with earlier Arizona cases:

  • Chavez v. Brewer (2009): Addressed unreliable voting machines; defined “free and equal” (drawing on Illinois, Kentucky, and New Mexico) as:
    • voters not prevented from casting ballots by intimidation or threats, and
    • each vote being given the same weight as every other.
    The Court of Appeals in Chavez concluded the clause is implicated when votes are not properly counted.
  • State ex rel. Brnovich v. City of Tucson (2021): While the Free and Equal Elections Clause played a minor role, the Court:
    • linked it with the “fundamental right to vote,”
    • held that low voter turnout alone does not violate that right, and
    • found no “barriers to voting or unequal treatment” arising from off-cycle municipal elections.

2. Comparative Persuasion: Washington’s Identical Clause

The Court gave particular weight to Washington’s jurisprudence because Washington’s constitution contains an identical Free and Equal Elections Clause (art. I, § 19), and Arizona precedent instructs that similar state constitutional provisions from other states are “very persuasive.”

The key Washington case is Eugster v. State, 259 P.3d 146 (Wash. 2011), which confronted a very similar issue: whether Washington’s district-based elections for its court of appeals judges violated the “free and equal” clause.

The Washington Supreme Court held:

  • The clause does not require “substantial numerical equality between voting districts.”
  • It prohibits the complete denial of the right to vote to a group of otherwise qualified citizens.
  • There was no violation because “every Washington voter has the opportunity to vote for at least one Court of Appeals judge.”

The Arizona Supreme Court adopted this conceptual framework and, combined with Chavez and Brnovich, distilled the state standard:

The Free and Equal Elections Clause is implicated when voters are disenfranchised (completely denied the right to vote in an election to which they are otherwise entitled) or when votes are given unequal weight.

C. The Disenfranchisement Argument

1. Plaintiffs’ Theory

Plaintiffs argued that they are “disenfranchised” in the retention elections of Court of Appeals judges who reside outside their § 12-120.02 voting district but nonetheless exercise statewide jurisdiction and issue decisions binding on them.

For example:

  • A Yuma County resident cannot vote on the retention of a Pima County Court of Appeals judge, even though that judge’s decisions can bind parties and affect legal rights statewide.

Plaintiffs therefore asserted that “statewide jurisdiction” of the court mandates a statewide electorate for retention of its judges.

2. The Court’s Response: No Underlying Right to Vote on Every Judge

The Court began by emphasizing that:

  • “Disenfranchisement” means the removal of an existing right to vote. Without a preexisting right to vote in a particular election, there can be no disenfranchisement.

Thus, Plaintiffs’ claim presupposed a constitutional right to vote in the retention election of every Court of Appeals judge. The Court found no such right in the text or structure of the Arizona Constitution.

Key points:

  • While the Constitution recognizes that court of appeals judges must stand for retention (art. 6, § 38(A)), it does not define who the electorate must be.
  • Historically, Arizona voters have elected or retained judges, but this history does not translate into a statewide entitlement to vote on all judges with statewide jurisdiction.

3. Structural Provisions Undercutting Plaintiffs’ Theory

The Court highlighted several constitutional provisions showing that jurisdiction does not determine the scope of the retention electorate:

  • Article 6, § 20: A retired justice or judge of any court of record, drawing retirement pay, “may serve as a justice or judge of any court.”
    • Such judges can exercise statewide jurisdiction, including on the Court of Appeals, yet are never subject to any retention election during such assignments.
  • Article 6, § 3: The Chief Justice may assign judges of intermediate appellate courts, superior courts, or inferior courts to serve in other courts or counties.
    • Assigned judges may exercise jurisdiction outside the county where they are elected or retained.
    • Again, jurisdictional reach is disconnected from the electorate that selects/retains them.
  • Article 6, § 13: All superior courts “constitute a single court,” and their process extends statewide.
    • Yet superior court judges in large counties are “subject to retention or rejection by a vote of the qualified electors of the county from which they were appointed,” not statewide (art. 6, § 37(B)).

The Court reasoned that if statewide jurisdiction required a statewide electorate:

  • Retired or visiting judges could not exercise binding statewide authority without facing statewide retention—contrary to the Constitution’s explicit text.
  • Superior court judges, whose court is a single, unified statewide court of general jurisdiction, would also have to be subject to statewide retention, contrary to art. 6, § 37(B).

To avoid conflict among constitutional provisions, the Court read them harmoniously:

Statewide jurisdiction of a court or judge does not create an individual constitutional right for every voter in the state to participate in that judge’s retention election.

4. The Secretary of State Filing Argument

Plaintiffs also pointed to art. 6, § 38(A), which requires justices and intermediate appellate judges to file their declarations of desire to be retained with the Secretary of State (a statewide officer). They argued this implies that such judges must be subject to statewide retention elections, like Arizona Supreme Court justices.

The Court rejected this inference as overreading a purely administrative detail:

  • The filing office (Secretary of State vs. county clerk) does not speak to the composition of the electorate.
  • Section 12-120.02’s geographic districts pre-dated the 1974 merit-selection amendment; voters presumably knew the existing scheme when adopting art. 6, § 38.
  • Requiring filing with the Secretary of State is just as plausibly explained by administrative convenience, especially for judges whose retention spans multiple counties.

5. Conclusion on Disenfranchisement

Because no voter is entitled by the Constitution to vote in the retention election of every Court of Appeals judge, and because every voter is allowed to vote in the retention elections of judges assigned to their own district, the Court held that:

  • No class of voters is disenfranchised within the meaning of art. 2, § 21.
  • The Free and Equal Elections Clause is therefore not violated on Plaintiffs’ “disenfranchisement” theory.

D. The Vote-Weight / One-Person, One-Vote Argument

1. Plaintiffs’ Allegations of Unequal Vote Weight

Plaintiffs also argued that:

  • The number of Court of Appeals judges per division is unequal (19 in Division One; 9 in Division Two).
  • The distribution of judges between urban and rural areas, and across the four § 12-120.02 districts, is uneven.
  • The population across the four voting districts is not equal.

They claimed this arrangement causes some voters’ ballots to have greater impact on the composition of the Court of Appeals than others, violating the “equal” component of art. 2, § 21.

2. Recasting the Claim as One-Person, One-Vote

The Court treated this as, in substance, a vote-dilution claim rooted in the one-person, one-vote principle that emerges from the federal Equal Protection Clause. Under that principle (Reynolds v. Sims, Hadley v. Junior College Dist., Avery v. Midland County):

  • Population equality is the “controlling criterion” in apportionment disputes.
  • State and local legislative bodies chosen by popular election must be apportioned so that each person’s vote carries substantially equal weight.

However, the U.S. Supreme Court has held that this principle does not apply to judicial elections. The key case is Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 1970), aff’d, 409 U.S. 1095 (1973), which the Court here relied on.

In Wells, a voter sought reapportionment of the Louisiana Supreme Court’s judicial districts under one-person, one-vote. The three-judge federal district court held:

  • The one-person, one-vote concept arose to protect a representative form of government.
  • Legislators are representatives; judges are not in the same sense.
  • Because judges do not function as representatives of a constituency, the one-person, one-vote principle is “simply not relevant” to the judiciary.

The U.S. Supreme Court summarily affirmed. Later, in Chisom v. Roemer, 501 U.S. 380 (1991), the Court again acknowledged Wells and noted that one-person, one-vote does not govern judicial elections for Equal Protection purposes.

3. Arizona’s Adoption of the Wells / Chisom Approach

The Arizona Supreme Court aligned itself with Wells and Chisom, holding:

  • The one-person, one-vote principle does not apply to judicial retention elections under Arizona’s merit selection system.
  • Therefore, population-based apportionment is not constitutionally required for Court of Appeals retention districts.

The Court also emphasized that neither the text nor history of art. 2, § 21 suggested that the Free and Equal Elections Clause was intended to import one-person, one-vote into judicial elections.

Given this framework, the plaintiffs’ vote-weight challenge failed:

  • Geographic voting districts for judges do not become unconstitutional merely because some districts have more judges or voters than others.
  • So long as voters are not wholly denied the right to vote where such a right exists, and there is no cognizable form of vote dilution recognized for the judiciary, the Free and Equal Elections Clause is not violated.

E. Equal Privileges and Immunities Clause Analysis

1. The Clause and Its Relationship to Equal Protection

Arizona’s Equal Privileges and Immunities Clause states:

“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

The Court reaffirmed the long-standing rule that art. 2, § 13 is interpreted in line with the federal Equal Protection Clause of the Fourteenth Amendment (Coleman v. City of Mesa; Valley Nat’l Bank v. Glover):

  • The operative question is whether the law treats similarly situated persons differently without justification.
  • Equal protection is satisfied “if all persons in a class are treated alike” (Craven v. Huppenthal).
  • Not all classifications are unconstitutional; legislation routinely classifies, and such classifications are permissible unless arbitrary or irrational.

2. Plaintiffs’ Claim

Plaintiffs argued that § 12-120.02:

  • Creates a classification based on residency that results in some voters having the right to vote on the retention of more Court of Appeals judges than others.
  • Consequently, the “privilege” of voting in particular retention elections “does not equally belong to all citizens,” contrary to art. 2, § 13.

3. The Court’s Application of Equal Protection Principles

The Court conceded that § 12-120.02:

  • Does classify voters based on geographic residency.
  • Results in differences in the number of Court of Appeals judges each voter can help retain (e.g., Maricopa residents may vote for 10–14 judges; non-Maricopa Division One residents may vote for 5–9, depending on at-large judges’ residence).

But this does not, by itself, establish a constitutional violation. The crucial points:

  • The Equal Protection/Privileges and Immunities guarantee is about equality between persons, not between geographic areas.
    • McGowan v. Maryland: Equal protection “relates to equality between persons as such, rather than between areas”; territorial uniformity is not constitutionally required.
    • Missouri v. Lewis: The Fourteenth Amendment guarantees 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.”
  • Section 12-120.02 treats all voters within each geographic class the same.
    • Every Maricopa County voter has the same right to vote on the retention of the same set of judges.
    • Every voter in the “non-Maricopa Division One” class has the same rights within that class, and so on.
  • Plaintiffs did not allege that some voters within the same district are treated differently from others, or that voters in one district are treated less favorably in a constitutionally cognizable way.

Thus, there was no showing that:

  • Similarly situated individuals were treated unequally within the meaning of art. 2, § 13, or
  • The residency-based classification was arbitrary or irrational.

Because the plaintiffs failed at the threshold of proving unequal treatment of similarly situated persons, the Court held there was:

  • No need to engage in further scrutiny analysis (rational basis vs. strict scrutiny).
  • No violation of the Equal Privileges and Immunities Clause.

F. Legislative Authority and Judicial Deference

The Court closed its analysis by underscoring the Legislature’s plenary authority over the Court of Appeals:

  • Article 6, § 9: “The jurisdiction, powers, duties and composition of any intermediate appellate court shall be as provided by law.”
  • Article 4, pt. 1, § 1: Vests legislative power in the Legislature.
  • Seisinger v. Siebel: The Legislature has plenary power on any topic not otherwise constrained by the Constitution.

Given:

  • The absence of constitutional text mandating statewide retention elections for Court of Appeals judges;
  • The inapplicability of one-person, one-vote to judicial elections; and
  • The equal treatment of voters within each geographic class;

the Court declined to disturb a 60-year-old statutory framework that has governed the Court of Appeals since its creation.

IV. Complex Concepts Simplified

A. “Free and Equal” Elections in Arizona

Under this decision, Arizona’s Free and Equal Elections Clause guarantees:

  • Voters may cast ballots without coercion, threats, or improper barriers.
  • Votes are properly counted and not diluted in ways that the law recognizes (e.g., by malapportionment for legislative bodies).
  • No group of citizens is completely denied the right to vote in an election where they are otherwise entitled to vote.

It does not guarantee:

  • The right to vote in every election that might affect a person indirectly (e.g., every judge whose decisions have statewide effect).
  • Absolute numerical equality in the influence each person’s vote has over judicial offices.

B. One-Person, One-Vote vs. Judicial Elections

The one-person, one-vote principle means that in elections for representative government bodies (like legislatures or city councils), each district must be drawn so that each person’s vote counts roughly the same as another’s based on population.

But for judges:

  • Courts have held that judges are not “representatives” of a constituency in the same way legislators are.
  • As a result, population equality rules that apply to legislative districts do not apply to judicial election or retention districts.

C. Equal Privileges and Immunities / Equal Protection

Equal protection (and Arizona’s parallel Equal Privileges and Immunities Clause) does not forbid all distinctions in the law. It forbids:

  • Treating similarly situated persons differently without a legitimate reason.

It allows:

  • Differences based on geography or residency, as long as everyone within the same area is treated the same, and the classification serves some reasonable governmental purpose.

D. Merit Selection and Retention Elections

Arizona uses a merit selection system:

  • Judicial nominating commissions screen applicants and send a shortlist to the Governor.
  • The Governor appoints judges from that list.
  • Judges then periodically stand for retention elections: voters are asked “Yes” or “No” whether the judge should remain in office.

In this system, judges do not run in contested candidate-vs-candidate elections; they simply face an up-or-down vote. The legislature decides which voters (defined by county/division) comprise the electorate for each judge’s retention election, subject only to constitutional limits.

E. “Disenfranchisement” vs. Absence of a Right

To be “disenfranchised” is to be deprived of a right to vote that one otherwise has. It is not the same as:

  • Never having been granted the right to vote in a particular election in the first place.

In Knight, the Court held that because the Constitution never granted a right to vote in the retention election of every Court of Appeals judge, voters are not “disenfranchised” merely because they cannot vote in some judges’ retention elections.

V. Impact and Significance

A. Clarifying the Scope of the Free and Equal Elections Clause

Knight v. Fontes is a leading Arizona authority on the meaning of the Free and Equal Elections Clause. Its key clarifications:

  • The clause is triggered primarily by:
    • Complete denial of voting rights to an otherwise eligible class of voters, or
    • Improper counting or weighting of votes (as in unreliable machines or systemic miscounting).
  • It does not constitutionalize the one-person, one-vote principle for judicial elections.
  • It does not require that the electorate for a statewide-jurisdiction court be statewide.

This narrows the potential use of art. 2, § 21 as a weapon against structural election rules adopted by the Legislature, especially in the judicial-selection context.

B. Judicial Independence and Non-Representational Character

By importing the Wells rationale, the Court reinforces the view that:

  • Judges are not representatives of specific geographic constituencies.
  • They are expected to apply the law impartially, regardless of the locality of the litigants or the voters who participated in their retention.

This supports a more institutional view of the judiciary, distinct from the political branches, and may be cited in future disputes about:

  • Efforts to “electorally” pressure judges based on particular regions’ preferences, and
  • Arguments analogizing judicial elections to legislative elections for purposes of redistricting or vote-dilution theories.

C. Separation of Powers and Legislative Control Over Court Structure

The decision underscores the Legislature’s significant role in structuring the judiciary:

  • It confirms that the Legislature may define courts of appeals’ composition, divisions, and electoral districts (art. 6, § 9), subject only to express constitutional limitations.
  • Reforms to Court of Appeals retention districts—such as moving to statewide retention—are therefore political or constitutional-amendment questions, not matters of judicially enforced equality under current constitutional language.

D. Litigation Strategy for Election-Law and Judicial-Reform Advocates

For advocates:

  • Challenges to election mechanics under the Free and Equal Elections Clause will be most promising where:
    • Voters are prevented from voting in elections they are clearly entitled to join, or
    • There is evidence that votes are not properly counted or are structurally devalued in ways akin to Chavez (e.g., defective machines).
  • Challenges that seek to impose apportionment-like rules on judicial elections will likely fail under Knight, absent a constitutional amendment.

E. Stability of Existing Judicial Election Structures

By validating § 12-120.02’s decades-old framework, the decision provides:

  • Stability for Arizona’s merit selection and retention system.
  • Reassurance that long-standing judicial electoral structures will not be disrupted absent clear constitutional mandate.

VI. Conclusion

Knight v. Fontes is a significant Arizona Supreme Court decision that clarifies the scope of both the Free and Equal Elections Clause and the Equal Privileges and Immunities Clause in the context of judicial retention elections. The Court held that:

  • There is no constitutional right for every voter to participate in the retention election of every Court of Appeals judge, even though the Court of Appeals issues statewide precedential decisions.
  • The one-person, one-vote principle does not apply to Arizona’s judicial retention elections, mirroring federal judicial-election doctrine.
  • Residency-based voting districts for Court of Appeals retention do not violate Equal Privileges and Immunities / Equal Protection, so long as all persons within each geographic class are treated the same and there is no invidious discrimination.
  • The Legislature retains plenary authority under art. 6, § 9 to structure the composition and electoral framework of the Court of Appeals.

The opinion confirms that Arizona’s “free and equal” elections guarantee is a powerful but targeted safeguard against disenfranchisement and miscounted votes, not a broad license to judicially redesign electoral structures for judges. Any move to statewide retention of Court of Appeals judges, or to impose population-based apportionment on judicial elections, must come through the political process or constitutional amendment, not litigation under current state constitutional provisions.