The Arizona Supreme Court on Thursday ordered counties to put a measure on the ballot that would allow voters to decide whether to eliminate partisan primaries.
However, whether people can vote for or against and whether these votes count remains a separate legal question.
In a 10-page ruling, the justices agreed that the content of Proposition 140 would change several sections of the Arizona Constitution about how elections are conducted in Arizona. And they acknowledged that voters generally cannot be asked to make such decisions on an all-or-nothing basis.
But Chief Judge Ann Scott Timmer, a judge appointed by former Governor Jan Brewer and author of the court, said the content of the measure was legally sound.
“The provisions of the bill are thematically related, sufficiently interrelated, concern matters that have historically been treated as one issue, and have qualitatively similar effects on the bill,” she said, even though they seek to amend multiple constitutional provisions. “Touching more than one section of the constitution is not necessarily fatal.”
What is not entirely clear, however, is whether all objections to Proposition 140 have been resolved.
On the one hand, there is the Supreme Court’s order on Thursday directing U.S. Secretary of State Adrian Fontes to place the so-called Make Elections Fair Act on the general election ballot “unless otherwise ordered in the future.”
However, the judges also pointed out that there was still no final solution to the question of whether the proponents had collected enough valid signatures to be allowed to vote.
On Wednesday, the justices said Maricopa County Superior Court Judge Frank Moskowitz, who was appointed by former Gov. Jan Brewer, improperly refused to consider some of the signature count evidence presented by opponents of Proposition 140. And Timmer ordered the trial judge to review the evidence “and determine whether the exhibits establish by clear and convincing evidence any duplicate signatures.”
“The court should then proceed accordingly,” she wrote.
But on Thursday, Moskowitz said he would not be able to review the roughly 43,000 signatures on the petitions, which opponents say are duplicates, until ballots are printed on Friday, so he postponed a hearing until Sept. 3.
Andrew Pappas, a lawyer for Make Elections Fair, said the challenge was over.
“The deadline for printing ballots is no longer valid given the pending disputes,” he told Capitol Media Services.
There was no immediate reaction from the challengers to what is happening now.
But Pappas’ claim about the impact of the deadline may not hold water.
“Although the courts respect the deadline for printing the ballot papers and do their best to decide expeditiously and meet the deadline, there is no judicial rule or law that requires the courts to decide before the deadline for printing the ballot papers,” Timmer said in a prepared response to a question on the subject.
And the Supreme Court justices said it was now up to Moskowitz to decide whether there were enough signatures to issue an order. And even then, the issue would not necessarily be settled.
“Any party can ask the Supreme Court to review this order,” Timmer said.
There was no immediate response from the State Department when asked what would happen if ballots were printed with the words “Proposition 140” and a judge subsequently ruled that the words should never have been placed there.
One possibility would be for a court to issue an order directing county election officials not to count the votes for or against because they never existed.
The pending dispute comes just days after the Secretary of State’s office completed its review of the approximately 575,000 signatures submitted for the ballot. After the review, which included checking a random sample, it was determined that 409,474 valid signatures remained.
But the minimum number required for the proposed constitutional amendment is 383,923, so if the new review disqualifies more than 20,551 of the remaining members, the petition campaign will be unsuccessful.
At stake is a potentially fundamental shift in Arizona politics.
Currently, candidates seek their own party’s nomination in primaries in which only members of that party can vote. Independents can also vote by choosing a party’s ballot, but generally do not participate.
Supporters of Prop 140 said that means the candidates are trying to appeal only to the party’s diehard supporters, and then a choice will have to be made between those candidates in November.
This system has an even more significant impact in constituencies where one party has a large advantage over the other in voter registration. The candidate of the majority party is the de facto winner.
Under this system, there would be a single, completely open primary election in which all candidates from all parties and political independents would compete against each other. And anyone who is registered to vote would be able to cast their vote.
The argument of supporters is that all candidates must appeal to all voters.
But the measure is not over yet.
It would be up to Parliament to determine how many candidates would advance to the general election. It could simply be the top two, even if both belong to the same political party.
However, it would also allow lawmakers to put up to five names on the ballot, in which case a system would be required in which voters rank their suggestions from first to last, with potentially multiple stages of eliminating the candidate with the fewest votes until one candidate receives at least 50% of the vote.
Even if the measure is approved for the ballot, another legal problem remains.
Supporters of the initiative had filed suit after the Legislature prepared a summary of the measure that mentioned the possibility of ranked-choice voting, even before the mandatory open primary election. Maricopa County Superior Court Judge Melissa Julian, a judge appointed by former Governor Doug Ducey, ruled that this was done intentionally “to discourage voters from supporting the initiative.”
Legislative Council members are now calling on the Supreme Court to overturn Julian’s conviction.
In this matter, the need for a quick decision is not so great.
This summary will not appear on the ballot but in a booklet that is supposed to provide an “impartial” analysis of each measure on the ballot. The booklet will be sent to the home addresses of the state’s more than 4.1 million registered voters. The deadline for this wording is September 6.
