Arizona open primary initiative is constitutional, but signature challenge continues

The Arizona Supreme Court ruled that a ballot question asking voters to get rid of partisan primary elections does not violate the state Constitution.

Proposition 140, backed by a group called Make Elections Fair, would create an open primary system in Arizona, allowing voters to select a candidate of their choosing, regardless of party affiliation.

Opponents who filed a legal challenge to keep the measure off the ballot argued the proposal, which would amend multiple parts of the state Constitution — violates multiple sections of the document, including a rule requiring each proposed amendment to appear as a separate ballot question.

But the state Supreme Court unanimously found the measure is constitutional, because all of the proposed changes are related to the same purpose.

“Here, the provisions of the Act are topically related, sufficiently interrelated, involve matters that have historically been treated as one subject and are qualitatively similar in their effect on the law, even if the changes concern more than one section of article 7 of the Arizona Constitution,” according to the ruling signed by Chief Justice Ann Scott Timmer.

The plaintiffs also challenged the proposal’s clause exempting it from the “revenue source rule,” which typically requires the identification of a new tax or source of revenues to pay for the expenses.

But, again, the Supreme Court said that exemption should not knock Proposition 140 off the ballot.

“To conclude otherwise would effectively require any initiative be presented in two bites — one for the substance of the Act, and one to address the Revenue Source Rule. Such a requirement would place too great a burden on the initiative process,” according to the ruling.

The Supreme Court’s decision means the question can go to voters if Proposition 140 survives an ongoing lawsuit challenging the validity of signatures Make Elections Fair gathered to put it on the ballot.

Signatures challenged

The state Supreme Court also ruled that a trial judge was wrong in refusing to consider some evidence challenging Prop. 140.

On Wednesday, the justices said Maricopa County Superior Court Judge Frank Moskowitz was wrong in refusing to consider some evidence presented by foes of Proposition 140 about the signature count. And Timmer directed the trial judge to examine the evidence "and determine whether the exhibits prove any duplicate signatures by clear and convincing evidence.''

"The court should then proceed accordingly,'' she wrote.

On Thursday, however, Moskowitz said there was no way he could review the approximately 43,000 signatures on petitions that challengers say are duplicates by the time ballots needed to be printed on Friday. So he put off a hearing -- until Sept. 3.

Andrew Pappas, an attorney for Make Elections Fair, said that's the end of the challenge.

"The ballot printing deadline moots pending disputes,'' he said.

There was no immediate response from challengers to what happens now.

"Although the courts respect the ballot printing deadline and do their best to meet expeditiously to meet the deadline, there is no court rule or law requiring the courts to rule before a ballot printing deadline,'' Timmer said in a prepared response to a question about the issue.

And the chief justices said it is now up to Moskowitz to decide the question of whether there are sufficient signatures and issue an order. And, even then, it won't necessarily be resolved.

"Either party can ask the Supreme Court to review that order,'' Timmer said.

There was no immediate response from the Secretary of State's Office to what happens once the ballots are printed with Proposition 140 on it and a judge subsequently rules it never should have been placed there in the first place.

One option could be for a court to issue an order directing county election officials not to tally any votes for or against it, as it it had never been there in the first place.

Separate suit over summary of Prop. 140

Initiative proponents filed suit after the Legislative Council crafted a summary of the measure that mentioned the option of ranked-choice voting first, even before the mandatory open primary. Maricopa County Superior Court Judge Melissa Julian ruled that was done on purpose "to dissuade voters from supporting the initiative.''

Lawmakers who make up the Legislative Council now are asking the Supreme Court to overturn Julian's ruling.

The need for a quick decision on that question is not as acute.

That summary does not go on the ballot but instead into a brochure that is supposed to contain an "impartial'' analysis of each measure up for a vote, a brochure mailed to the homes of the state's more than 4.1 million registered voters. And the deadline for that language is Sept. 6.

Howard Fischer of Arizona Capitol Media Services contributed to this story.