Legal Strategy with Dan Gutenkauf

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Serving notice to the Governor and election officials about
the construction and interpretation of election law.

                                                 by Dan Gutenkauf      

 Nov.4, 2000

To: Governor Jane D. Hull 
Secretary of State Betsey Bayless
State Elections Director Jessica Funkhauser
County Attorney Rick Romley
County Attorney Jill Kennedy
County Elections Director Karen Osborne
Clerk Board of Supervisors Fran McCarroll

Re: Implementation of A.R.S. 16-621 B.

     Statutory regulations governing the conduct of elections will be construed as mandatory where they affect the actual  merits of the election.  (See 29 C.J.S.  p.607, note.25  Elections, section 214 (2) Construction of Statutes as Mandatory or Directory). Certainly the method by which the votes are counted directly affects the merits of the election, especially when 48 pages of documentation on computer vote fraud have been presented.

     Further , the provisions of the election laws are mandatory if enforcement is sought before the election. (see page 608, note 30.10).

      Finally, as ruled by the Arizona Supreme Court in Miller v Picacho,   election laws are mandatory.  The courts, rather than election officers, are vested with the function of making a final interpretation of a statute regulating the conductl of elections. (See page 543, note 16.70).

You have a mandatory duty to implement the ministerial duties in the plain language of election law.


                                                                  Daniel A. Gutenkauf


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