Judge hears arguments on nonpartisan primaries ballot measure

PHOENIX — Whether Arizona voters get to decide on creating a nonpartisan primaries system could turn on math — and timing, since the proposal is already printed on the ballots.

In a day-long hearing Wednesday, supporters and foes of Proposition 140 agreed that at least 383,923 signatures on the initiative’s petitions need to be determined valid. Proposed constitutional amendments, as this is, need to have signatures equal to 15% of those who voted in the last gubernatorial race.

Challengers argue there aren’t enough valid signatures. They said they base that on signatures and petitions disqualified by the Secretary of State’s Office, a review by county records of a random sample of what was left, and a finding by a special master appointed by the court that more than 37,000 signatures are duplicates signed by the same person.

But Michael O’Neil, a statistical scientist, said the method used on that computation is flawed because it effectively double counts invalid signatures.

That’s important, said Travis Hunt, the lawyer for Proposition 140 supporters, because double counting of some disqualified signatures created a mathematical threshold that would require his clients to get the equivalent of 15.2% of the number who voted in the 2022 gubernatorial race. That would illegally override what is required, he said.

Hunt wants Maricopa County Superior Court Judge Frank Moskowitz to rule that there are enough signatures.

Foes of the initiative countered by bringing their own math expert to court, however.

Economist Constantijn Panis said he did not disagree with O’Neil’s math. But he said it doesn’t matter as the 383,923 number remains constant.

Attorney Daniel Arellano, representing the challengers, said a prior Supreme Court ruling upholds the double counting.

Moskowitz has been directed by the Arizona Supreme Court to rule on whether there are enough valid signatures to allow voters to have the final say.

Proposition 140 would scrap the current system where each party chooses its nominees for partisan federal, state and local offices. Instead, there would be a wide open primary, open to all candidates regardless of political affiliation, with all registered voters allowed to make their choices.

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It also would create the option for lawmakers to have just the top two vote-getters advance to the general election or to allow up to five candidates to be on the ballot. In that case, it would require the use of a system where voters rank their choices by preference, with the potential of multiple rounds of ballot counting until someone gets at least 50%.

Supporters submitted about 575,000 signatures to put the issue on the ballot. A check of a random sample determined 409,474 are valid.

Moskowitz assigned retired Judge Christopher Skelly to look at complaints by challengers about duplicate signatures. He concluded 37,657 of the names were duplicates, a finding which, if Moskowitz adopts it, would leave the initiative backers short of what they need.

That’s what makes the argument about double counting of invalid signatures significant: A ruling that it improperly raises the burden on supporters beyond the 15% threshold would leave Prop. 140 with enough signatures to go to voters.

Complicating matters is that the ballots already were printed — the deadline was weeks ago — with Prop. 140 on them.

If the challengers prevail, Arellano wants a court order directing state and county election officials to simply not tally the votes for or against the measure. But Hunt contends that, even if the signature count falls short, there is no legal authority for Moskowitz or the Supreme Court to issue such an order at this late date.

Secretary of State Adrian Fontes agrees with Hunt. In a brief to the Arizona Supreme Court, he said once ballots were printed — and the first ones go out at the end of the week — time simply ran out for foes to disqualify the proposition.

“No provision in the Arizona Constitution permits a measure to go to the ballot and allow millions of voters to vote on it, only for those votes to be invalidated,’’ wrote Assistant Attorney General Kara Karlson on Fontes’ behalf. “Neither is there a provision of the Arizona Constitution, nor state law, which would allow the secretary not to canvass a contest on the ballot.’’

Arellano countered on behalf of initiative foes: “Voters are not disenfranchised by not having their votes counted for a measure that we never eligible in the first place.”

Moskowitz did not say when he will rule. Any decision is likely to be appealed to the Arizona Supreme Court.