A Maricopa County judge ruled Arizonans can vote in November on a measure to ban partisan primary elections in the state after opponents filed a lawsuit claiming the campaign backing the measure failed to collect enough signatures to qualify for the ballot.
The measure, if approved by voters, would create an open primary system in Arizona, allowing voters to select a candidate of their choosing, regardless of party affiliation.
The Make Elections Fair campaign collected 584,124 signatures to put Proposition 140 on the ballot, above the 383,923 required by state law. But a check of random samples by election officials found 409,474 of those signatures were valid.
And then a retired judge appointed by the court to review additional signatures challenged by Prop. 140’s opponents invalidated over 37,000 duplicate signatures collected by the campaign, which could have dropped it below the number it needed to go before voters.
But Maricopa County Superior Court Judge Frank Moskowitz dismissed the case anyway, finding the plaintiffs failed to prove their case before ballots went to the printer at the end of August.
He further concluded that the calculation prescribed by state law that election officials used to initially invalidate that first tranche of signatures is flawed and double-counted some invalid signatures.
“Applying the statutorily mandated ‘double counting' of invalid signatures in this case would unreasonably hinder or restrict the Initiative and unreasonably supplant its purpose. … Doing so would undermine the integrity of the initiative process.”
That came after the campaign’s expert witness told the court that flaws in that formula effectively increased the burden on initiative campaigns, which must collect signatures equal to 15% of qualified voters to put a constitutional amendment on the ballot.
Michael O’Neil, a survey researcher, said the state’s flawed formula effectively increased the burden on initiative campaigns by requiring them to collect signatures in excess of that 15% threshold.
“It is a calculation that does not correctly produce, reproduce, 15%,” O’Neil said.
Even if the Supreme Court disagrees with Moskowitz’s finding that plaintiffs presented their evidence too late, Moskowitz found voters should still be allowed to vote on the measure, because state law does not give him the power to block counting of votes after a measure is printed on the ballot.
“Perhaps the absence of such express authority in statute is because the Legislature never intended for initiative challenges to go past the ballot printing deadline,” the judge wrote.
Chuck Coughlin with the Make Elections Fair campaign praised the decision.
“We believe it’s a complete and total walkoff homerun on behalf of voters who want to vote on Prop 140, and a complete support for the people’s right to initiate actions before their government,” Coughlin said.
An attorney for plaintiffs declined to comment on the case, but did file a notice of appeal with the Arizona Supreme Court, which previously found Moskowitz erred when he declined to consider the evidence of duplicate signatures because the evidence was presented too late in the election process.
Scot Mussi, president of the Free Enterprise Club — which sued to keep the measure off the ballot — accused the judge of bias.
He noted that Moskowitz had previously been rebuffed by the Supreme Court for refusing to consider some of the evidence about duplicate signatures, with the justices sending the case back to him.
“From the moment he was unanimously rebuked by the Arizona Supreme Court for blocking the removal of nearly 40,000 duplicate signatures, Judge Moskowitz has been trying to find a way to place Prop 140 on the ballot, irrespective of whether it had enough signatures to qualify,” Mussi said in a prepared statement.
“Today he issued a ruling manufacturing that outcome, deciding that the statutory method for determining the number of valid signatures for ballot initiatives is now unconstitutional,” Mussi continued. “He made this radical determination despite the fact that the statute Moskowitz invalidated is nearly 30 years old and was reviewed and upheld against a constitutional challenge by the AZ Supreme Court in 2022.”
But Moskowitz, in hearing the case earlier this week, said that 2022 decision simply affirmed that the method used by a judge in that case to count valid signatures complied with the law. Moskowitz said there never was a ruling on the constitutionality of that statute.
Howard Fischer with Capitol Media Services contributed to this report.
