Arizona Supreme Court Upholds Constitutionality of Arizona’s Judicial Retention Elections

By Thomas Williams, Eric H. Spencer, and Joseph Kanefield¹

The Arizona Supreme Court unanimously upheld, in Knight v. Fontes, the constitutionality of Arizona’s judicial retention election scheme for the Arizona Court of Appeals, rejecting challenges under the Arizona Constitution’s Free and Equal Elections Clause and the Equal Privileges and Immunities Clause.² The court affirmed dismissal of the suit brought by several Arizona voters who argued that because Arizona Court of Appeals’ decisions carry statewide precedential effect, every Arizona voter must be able to participate in every appellate judge’s retention election.

I. A Brief History of Judicial Retention Elections and the Merit Selection Process

When Arizona became a state on February 14, 1912, it did not have an intermediate appellate court system. The “Modern Courts Amendment” of 1960 authorized the Legislature to establish a court of appeals, which it did in 1964, simultaneously creating four geographic voting districts for appellate judicial elections — (1) Maricopa County; (2) all other counties in division 1 (generally northern Arizona); (3) Pima County; and (4) all other counties in division 2 (generally southern Arizona).³

In 1974, voters approved Proposition 108, which amended Article 6 of the Arizona Constitution to adopt merit selection and require nonpartisan retention elections for judges of courts of record, including the court of appeals.⁴ The merit selection process replaced the popular election of judges with a process of judicial commission nomination and gubernatorial appointment. 

II. The Court Upholds the Judicial Retention Elections Voting Scheme

A group of Arizona voters filed suit to challenge the judicial retention system, but their case was dismissed. The plaintiffs appealed and successfully petitioned the Arizona Supreme Court to accept a transfer of the case and bypass the court of appeals.

The Arizona Supreme Court issued its opinion on December 4, 2025. After finding that the plaintiffs had standing to challenge the constitutionality of the statute because of the alleged impairment of the right to vote, the court addressed the constitutionality of A.R.S. § 12-120.02 (the retention statute) under both the Free and Equal Elections Clause and Equal Privileges and Immunities Clause of the Arizona Constitution.

A. The Judicial Retention Statute Does Not Disenfranchise Voters or Give Unequal Weight to Votes

On the merits, the court began with the Free and Equal Elections Clause, which provides that “[a]ll elections shall be free and equal.”⁵ This is the first case the court has decided interpreting this clause of the Arizona Constitution. Relying on textual interpretation, historical meaning, and precedent to resolve ambiguity, the court held that the clause is implicated (1) when voters are disenfranchised or (2) when votes are given unequal weight.⁶

First, on disenfranchisement, the court held there is no constitutional right to vote in every appellate judge’s retention election. “Nothing in the Constitution suggests that a judge’s jurisdiction over an individual gives that individual an affirmative right to vote for that judge.”⁷ The court noted that adopting a statewide-electorate rule would contradict other provisions authorizing cross-assignment and service by retired judges without any corresponding statewide retention vote.⁸ The court concluded that “[w]ithout an identifiable right to vote in every court of appeals judicial retention election, there is no viable claim of disenfranchisement.”⁹

Second, on unequal vote weight, the court characterized plaintiffs’ claim as “at bottom, a vote dilution claim rooted in the one-person, one-vote apportionment principle,” which does not apply to judicial elections.¹⁰ Because judges are not representatives in the apportionment sense, “the one-person, one-vote apportionment principle ‘is simply not relevant to the makeup of the judiciary.’”¹¹ The court held that the geographic retention voting districts need not be apportioned by population because the one-person, one-vote principle does not apply to the judiciary.¹²

B. The Judicial Retention Statute Treats Voters Uniformly in Each District

Turning to the plaintiffs’ constitutional challenge under the Equal Privileges and Immunities Clause,¹³ the court applied the same analytical framework used for equal protection claims, requiring a showing of disparate treatment of similarly situated persons.¹⁴ Although § 12-120.02 “classifies individuals based on residency . . . afford[ing] an opportunity to vote on a greater or lesser” number of judges, the court emphasized that “it is not always a denial of equal protection when the state treats different classes of individuals in different ways.”¹⁵ The statute treats all voters within each geographic district uniformly, and “territorial uniformity is not a constitutional prerequisite.”¹⁶ Because plaintiffs did not allege differential treatment within a district, their claim failed without any need to apply any form of scrutiny by the court.¹⁷

Finally, the court underscored the Legislature’s broad constitutional authority over the court of appeals and the longstanding nature of the districts stating that “we do not lightly interfere with the voting districts established by the Legislature over sixty years ago.”¹⁸

III. Practical Implications

For parties that regularly litigate in Arizona’s courts, this decision provides clarity and continuity. The retention election framework for appellate judges remains unchanged. Efforts to mount constitutional challenges grounded in a statewide jurisdiction theory or “one-person, one-vote” principles face a high bar, given the court’s emphatic holding that retention electorates may be geographically defined and do not need to be apportioned by population.

The ruling also signals a cautious judicial approach to disrupting long-established statutory structures where the Arizona Constitution confers broad legislative discretion over the judiciary’s composition and acknowledges that while the challengers made “compelling policy arguments” with respect to Arizona’s judicial retention election system for the court of appeals, those arguments carry no constitutional significance. This means the proper forum to address the policy concerns raised by the challengers is the Arizona Legislature.