Arizona Legislature defends ‘misleading’ analysis of measure to change primary elections

A Maricopa County judge will decide Monday whether the Arizona
Legislature’s description of an open primary ballot initiative is
misleading to voters.

In a Friday afternoon hearing in Phoenix,
the state argued that so long as everything in the Legislature’s
analysis of an initiative proposing an system involving open primary
elections and ranked choice voting is true, it adheres to election law. 

“Simply
because someone could do it in a better way doesn’t violate the
statute,” state defense attorney Brunn Roysden told Maricopa County
Judge Melissa Julian. 

Andrew Pappas, representing political
action committee Make Elections Fair Arizona — which sponsored the
initiative — countered that the analysis must also be “clear and
concise.”

The initiative
— which will be on the ballot in November — proposes open primary
elections rather than separate primaries for the Republican and
Democratic Parties, and allows for the general election to be decided by
ranked choice voting only if the Legislature or the Secretary of State
decides that more than two candidates should advance to the general
election,

In its analysis
of the initiative, the legislative council first mentions the
potentiality of ranked choice voting before describing the required open
primary. 

While Roysden argued that the order of topics was changed for clarity’s sake, Pappas said it has the opposite effect.

“Even when parts of an analysis are accurate, they can nevertheless be misleading,” he said. 

Make Elections Fair sued the legislative council in July, requesting that it rewrite the analysis to better reflect its intention. 

In
the months leading up to the general election, Arizona voters will
receive by mail a publicity pamphlet more than 200 pages thick that
describes each initiative on the November ballot. The descriptions are
written by the legislative council — a committee of lawmakers led by
House Speaker Ben Toma and Senate President Warren Petersen tasked with
providing an impartial analysis of each measure to help voters make
informed decisions. 

In its analysis, the council mentions ranked
choice voting in paragraph number one, which ends with “see also
paragraph 4 below” in parenthesis. Paragraph four describes the
circumstances for ranked choice voting, while paragraphs two and three
describe open primaries. 

Pappas said the initial mention of
ranked choice voting and the cross reference to paragraph four encourage
readers to skip the information about open primaries and focus on
ranked choice. 

“A rhetorical strategy is being deployed here, designed to dissuade voters,” he said.

But
both Roysden and Julian agreed that nothing would stop a reader from
returning their eyes to the second and third paragraphs. 

Roysden likened the case to a consumer fraud case to contrast from important information being buried in fine print. 

“I
don’t think it comes close to that,” he said. “Simply the placement of
these two lines with a cross reference can’t say that it’s burying the
lede.” 

Even if a voter focused only on ranked choice voting,
Roysden said, that would be a valid reason to vote for or against the
measure as a whole, and wouldn’t be the result of manipulation or
distraction. 

“You’re making an all-or-nothing decision,” he said. 

While
the analysis remains technically true, Make Elections Fair says the
decision to mention ranked choice voting first intentionally distracts
from the larger goal and focuses voters’ attention on the more
controversial topic, even though it may not ever come into play. 

“It’s clearly arbitrary and argumentative,” treasurer Chuck Coughlin said in a phone call with Courthouse News. 

The
initiative allows for the Legislature, the secretary of state, or the
people, through a future ballot initiative, to decide between two and
five how many candidates will advance from an open primary to a general
election in state and federal races. If three or more advance, only then
does the initiative call for ranked choice voting. 

Because both
the Legislature and the people would most likely oppose ranked choice
voting and therefore write into law that only two candidates will
advance, the implication that a vote for the initiative would
immediately lead to choice voting is dishonest, Coughlin said. 

Pappas
also argued Friday that saying the initiative “allows” ranked choice
voting may be misleading in and of itself, because whether the state
constitution allows the practice is still an open legal question. The
initiative specifically states that it “does not prohibit” the practice.
If it’s later decided that the constitution prohibits it, the statute
wouldn’t conflict with that. And the use of “allows” suggests it would,
he said. 

“I just think that’s slicing the salami pretty thin,”
Roysden replied, dismissing the argument. He said the legislative
council has no position on whether the constitution allows for ranked
choice voting, and would prefer not to be dragged into that legal
argument. 

Julian said she will file a decision by the end of the day Monday.