*1 examining In for funda record 13-1715, pursuant
mental error A.R.S. § sen
we have an in the irregularity found imposed. the for
tence The minutes and guilt
mal state and sentence
that the for a defendant is be confined years to one-half
term of five five However,
years in the State Prison.
transcript reflects that sentence years years day.
five to five and one presented
situation is identical with that Jefferson, in
found 108 Ariz. State v. question posed (1972).
position accept dissent has not been
ed, holding case will the cited
be followed. affirmed, guilt
The judgment of but Superior
the case remanded to purpose determining
for the sen- what imposed.
tence was actually
Remanded with directions. LOCKWOOD,
STRUCKMEYER
JJ., concur.
CITY OF Petitioner, poration, Judge pro
Jeremy BUTLER, Su tem. Arizona; Gary perior Court of the State of Interest, KLAHR, party Re Peter real spondents. Purcell, Atty., City by Barry R. Lev- Joe No. 11341. Max, Attys., City erant and Alan S. Asst. Supreme Arizona, Court of Phoenix, petitioner. In Banc. pro. Gary per. Peter Nov. HOLOHAN, Justice. Phoenix, Petitioner, sought ac-
by
filing
special
of a
judg-
prevent
tion to
the enforcement of
Pro Tem-
Respondent Judge
ment
pore
un-
16-844(1)
which declared A.R.S. §
*2
any slate or
part
not
of
candidate and
ent
constitutional and which
ordered
candidates
other
ticket,
that there were
but
City
the
to voters
the
to revise
instructions
slate
running as a
on the ballot
who
at the primary
on the ballots
be used
to
sup-
that his
Klahr contended
or ticket.
After hear-
13,
election of November
if he
alone
porters should
for him
vote
accepted
arguments
ing
petition,
on the
we
election,
if
of
but
his
to be assured
was
the
jurisdiction
granted
the
of
and
candidates
supporters
for other
also voted
City. A
order was issued
formal written
to fa-
strength
his
and
this tended to dilute
judg-
the
preventing
enforcement of
the
assured
candidates who were
vor the slate
below,
a formal
ment
and
that
we noted
who
large
a
number of votes from those
of
due course.
opinion
written
would
in
follow
of the
customarily
for the members
voted
12,
of
Chapter
of the Charter
Section 9
slate.
provides
part
in
that
City
the
of Phoenix
comply
Respon
of the
shall
with
argument
the form
ballot
of
Much of the
provisions
respecting
the
of the law
ballots
supposition and un
dent
is
on
Klahr
based
the
general
at
elections with
The
competent
to be used
supported by any
evidence.
be ar-
of candidates for office to
for
names
the
City
the
listed
candidates
ballot of
applicable
ranged
provided by
The
designa
as
law.
only,
councilmen
name
without
provision
governing the form of
ticket,
of law
There
or
party,
tion of
slate.
general elections A.R.S.
ballot for the
an ac
presented from which
§ no evidence
pro-
I
pattern
16-844.
of that Section
of
voting
Subsection
the
of
tual breakdown
:
past
vides
be determined
elections could
support
no evidence to
Klahr’s
so there is
designa-
“I.
below the
Immediately
be
just
plausible
as
to
contentions.
It is
tion of the office to be voted for shall
Klahr,
ran
Respondent,
the
who
lieve that
appear
(or
one’
the words:
‘Vote for
years
unsuccessfully
two
for councilman
more, according to the
to be
number
who
ago,
his votes from voters
received
elected).”
him alone or
voted for some
voted for
who
agreement
parties were in
that
the
not all and
slate candidates but
of the
form of the ballot which the
intended
rather than
chose instead to vote for Klahr
complied
to use for the election
the
with
other
candidates.
one of the
slate
applicable
(A.R.S.
Charter
the
statute
and
satisfy
speculation
point does not
on this
16-844). There are six
to be
councilmen
competent
the
for
evidence.
need
interest,
party
Re-
elected. The real
Klahr,
a num-
has cited
spondent
argued that
form of
the
Supreme
deci-
ber of United States
discriminatory
ballot to be used was
Dis-
Free
sions: Kramer v.
School
Union
improper.
that
therefore
Klahr contended
1886,
621,
23 L.Ed.
trict, 395
89
U.S.
S.Ct.
legend
the office
Six” below
College
Hadley
(1969);
v.
2d 583
Junior
of councilmen
in that
it
791,
50,
District,
25 L.
90 S.Ct.
397 U.S.
conveyed
the idea
to the mind
voter
Cornman, 398
(1970); Evans v.
Ed.2d 45
support
that
must vote for
of
he
six.
1752,
370
419,
26 L.Ed.2d
90
U.S.
S.Ct.
three wit-
this contention Klahr offered
649,
Allwright, 321 U.S.
(1970); Smith v.
court,
hearing
in the trial
nesses at
757;
(1944);
64
Superior Court zona, play cannot alleged that the words “Vote an honest election which in that deceptive any misleading good manner be curtailed without Six” implied voter ob- im- language Any damages that the or cause. law which for the pairs citizenship for six candidates ligated right to vote this fundamental fact, when, voter has the purity council of elections. subverts six, and that some less than to vote for question is, stringent here how only prefer to one would vote apply standard to insure should running. among those Su- purity standard no this, of elections. fact, perior as a after an evi- Court found guarantees acceptable except which dentiary hearing, instruction intelligently that all and knowl- can vote six and directed vote for should edgeably. end, such words To this upon placed be the ballot: that these words unequivo- placed upon as will it does for no more than six.” But cally they can vote inform the voters judicial finding take a to establish than six. for six or number less unsophisticat- baldly what is obvious. The are not here concerned with We unimpaired exer- ed are also entitled to the voter”, announce; “average majority rights. cise of constitutional rather, are concerned with the under- we By Article 12 of Constitution voters, no standing of all and that voter *5 Legislature is State, the directed By knowledgeable exercise mislead. purity of elec- enact laws “to secure minority can the elective franchise purity “to tions.” The words secure minority representation on the secure significance. cogent legal Council. elections” have