Az Supreme Court lets legislature’s description of ‘open primaries’ measure stand

The Arizona Supreme Court sided with
Arizona legislators over a trial court judge who concluded their
description of a ballot proposition to end partisan primaries was
“misleading,” overturning the lower court’s ruling. 

Maricopa County Superior Court Judge Melissa Iyer Julian previously ruled
that a legislative panel responsible for writing summaries of ballot
measures that are sent to every Arizona voter wrote a description of
Proposition 140, a citizen initiative also known as the Make Elections
Fair Act, was intentionally misleading. 

If voters approve it in November, the
measure would create an open primary system where all candidates for
federal, state and local offices would face off in a single primary
election instead of segregated partisan elections. Those primaries would
also include candidates who are politically unaffiliated. 

All registered voters would be able
to choose from all the candidates in the primary, and the top
vote-getters would advance to the general election, even if they don’t
represent different parties.

The number of candidates that would
advance from the primary to the general is something that the ballot
measure directs state lawmakers to address in 2025, though that decision
making would go to the secretary of state — currently Democrat Adrian
Fontes — if legislators fail to act. 

Depending on how many candidates are
allowed to go to the general election, lawmakers would also be
authorized to enact ranked-choice voting, in which voters rank the
candidates from favorite to least favorite. When voting is over, a
process of elimination takes place: The lowest vote-getter in the first
round is eliminated, and their votes are redistributed to higher
vote-getters, according to how voters ranked the other candidates. The
process continues until a single winner is identified.

Ranked-choice voting is currently used in Alaska and Maine, and in cities like Minneapolis and New York City.

Make Elections Fair Arizona, the
political committee that gathered signatures to get Prop. 140 on the
ballot, filed a lawsuit contending that the Legislative Council’s
description of the measure unfairly focuses on the possibility for ranked-choice voting, which is not mandated by the proposed constitutional amendment.

A trial court agreed and lawmakers appealed
to the Arizona Supreme Court, which ruled Wednesday that the trial
court’s analysis was wrong, ordering the legislature’s analysis to be
printed in the publicity pamphlet that will be sent to every Arizona
voter. 

At the heart of the matter is the
order in which the description outlines what Prop. 140 would do.
Lawmakers contend that the order they chose best describes the
initiative, while its backers claim it intentionally draws attention to a
mechanism that would allow for — but not require — ranked-choice voting
in order to stoke voter opposition. 

The trial court ruled that the
legislature’s description does not supply the proper context on voter
ranking and renders the description misleading. But the Arizona Supreme
Court disagreed.

“We unanimously conclude that the [Legislative] Council’s analysis substantially complies [with the law],” Chief Justice Ann Scott Timmer wrote in the ruling. “The
Council’s analysis in the first numbered paragraph therefore accurately
describes this provision by stating that the Initiative would amend the
constitution to ‘[a]llow for the use of voter ranking at all elections
held in this state to determine which candidate received the highest
number of votes.’”

The trial court had ruled that the
order of the description was a “rhetorical device” meant to confuse or
dissuade voters, but the Supreme Court ruled that the order didn’t
matter if the description was factually true. 

“We disagree that the first numbered
paragraph’s reference to the fourth numbered paragraph of the analysis
was an improper rhetorical device that encouraged voters to ‘skip over’
provisions describing proposed changes to the primary and general
election procedures,” Timmer said. 

“The analysis describes the changes
in separately numbered, short paragraphs, which permits an interested
voter to understand the proposed amendments. It is not for the courts to
decide what aspects of the Initiative are most important and deserving
of description in the analysis’ initial paragraphs,” she continued.

The Arizona Supreme Court ordered
that the Secretary of State print the original analysis. The ultimate
fate of Prop. 140 is still up in the air. 

The ballot proposition, which has
faced numerous challenges, is still facing a challenge on its signatures
that could invalidate the proposed constitutional amendment. Prop. 140
would still appear on the ballot if the court rules the signatures
invalid, though votes for it would not be counted.

At issue now is determining whether
some 40,000 signatures that were already deemed valid are, in fact,
duplicates, which would jeopardize the measure’s place on the ballot. A
trial court judge had earlier ruled against the signature challenge,
determining that Prop. 140 had about 32,000 petition signatures more
than needed.

But the Supreme Court said the lower
court judge improperly refused to consider the evidence plaintiffs said
proved there were tens of thousands of duplicate signatures, and told
the judge he needs to reopen the case and examine that evidence to
determine whether Prop. 140 has the needed signatures to go before
voters in November. 

Arizona Supreme Court Justice Clint Bolick, whose wife is Republican lawmaker Shawnna Bolick, recused himself from the case.