Let voters decide, backers of nonpartisan primaries urge Arizona justices

When it comes to challenging signatures on initiative petitions, how late is too late?

Definitely once the ballots go to the printer, contend supporters of Proposition 140. That’s the measure to scrap partisan primary elections.

But justices on the Arizona Supreme Court issued an order allowing a legal challenge to continue after the ballots are printed, giving foes of Prop. 140 a chance to make their case that the number of valid signatures falls short.

If they prove that, the justices said the votes in November for the measure just won’t count.

Now, the initiative backers have filed legal arguments that the ruling was wrong. They want the Supreme Court to clear the way for voters to have their say since the ballot printing deadline has passed.

Allowing the order to stand, and the challenge to continue, “cuts a new and risky path,’’ argued attorney Andrew Pappas for Make Elections Fair, the group proposing a public vote on Prop. 140.

“The order invites and indeed contemplates the risk that Arizona voters will vote for the initiative and later have their votes thrown out,’’ he told the justices. That would disenfranchise the voters, Pappas said.

The other side, however, has argued there is no reason to allow the votes to be counted if there never were enough signatures to put the issue on the ballot in the first place.

At issue is whether voters want to create a new system for choosing candidates for federal, state and local offices.

Right now, candidates for partisan elections face off in a primary. Then, each party’s top vote-getters appear on the November ballot.

Prop. 140 would replace that with a single “jungle primary’’ where all candidates from all parties compete against each other. All voters, regardless of party affiliation, could cast a ballot.

The top two vote-getters would face off in the general election, regardless of party designation. But the measure also would permit the Legislature to let up to five candidates advance to the general election, with a system of ranked-choice voting to ultimately decide who wins.

Make Elections Fair submitted about 575,000 signatures. That was winnowed down after checks by state and county election officials to 409,474, still more than the 383,923 needed to qualify for the ballot.

Foes, however, contend about 40,000 of those signatures are duplicates.

At an initial hearing, Maricopa County Superior Court Judge Frank Moskowitz declined to consider some of the evidence that foes say back up their contention. The Supreme Court said that was wrong and sent the case back to him.

Only thing is, the judge said there was no way for him to review all the questioned signatures before the Aug. 22 deadline to print ballots. He said he couldn’t take the word of the challengers that the signatures are duplicates without looking himself or appointing a special master to do that.

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So he set a new hearing for Sept. 12, long after the ballots were printed.

The Supreme Court said if Moskowitz finds there aren’t enough valid signatures, he should issue an order “precluding any votes for the measure from being counted.’’

“Under these condensed circumstances, this result is the most appropriate way to enable the parties to present their evidence for a proper adjudication in an expedited manner,’’ wrote Chief Justice Ann Scott Timmer.

But Pappas is now arguing that once the printing deadline passed, it’s game over and the votes for Prop. 140 should be counted.

“By allowing this expedited election litigation to proceed beyond the start of the ballot-printing process, the order is at odds with eight decades of the court’s precedents, the court’s rules, and the court’s orders in two prior appeals in this dispute,’’ Pappas told the justices. He argued it also runs afoul of the Arizona Constitution, state law and public policy.

The essence of his argument is that the burden is not on Make Elections Fair to prove the signatures are valid but instead on the challengers to show they are not. Pappas said it’s clear that by the time the printing deadline came around, they had failed to meet that burden.

He said the fact that time had run out for the foes to make their case does not matter.

Pappas said there is precedent for that argument.

He cited a case going back to 1983 involving the Save Our Public Lands initiative. There was a question whether there were enough signatures to put it on the ballot. The random sample count was so close that election officials were told to go back and review all the signatures.

But the justices concluded there wasn’t enough time to do that.

“If the time pressures are such that the county recorders cannot verify every signature before the date the election ballots must reach the printers, all doubts as to validity should be resolved in favor of sustaining the signatures, and the initiative should be placed on the ballot,’’ wrote Justice Frank Gordon.

And in a 1998 Supreme Court ruling, the justices said a delay in challenging a measure to outlaw cockfighting meant that once the time had run out for litigation, the presumption was the measure was entitled to go to the ballot, where the voters get the last word.

In the case of Prop. 140, the current justices have given foes through the end of this week to file a formal response before they make a final decision.

The Supreme Court already rejected one challenge seeking to keep Prop. 140 off the ballot amid arguments it asked voters to approve multiple changes in the law in a single take-it-or-leave-it initiative. The justices said the provisions were sufficiently closely related to meet constitutional requirements.