PHOENIX — Arizonans are entitled to decide whether to scrap the current system of partisan primaries, a judge ruled Thursday.
But the final word will rest with the Arizona Supreme Court.
Maricopa County Superior Court Judge Frank Moskowitz acknowledged there is evidence challengers proved that 37,657 signatures on petitions to put Proposition 140 on the ballot were duplicates. That, by itself, would have left the initiative without enough signatures.
The judge pointed out, however, that the ballots went to the printer at the end of August, with Prop. 140. He said the failure of challenges to prove their claim of duplicate signatures by that date ended the matter.
Scot Mussi of the Free Enterprise Club, which filed one of two lawsuits to knock the measure off the ballot, said the judge not only got it wrong legally but has been biased against foes of the initiative.
But Moskowitz, in his ruling, appeared prepared for Mussi to seek high court review. He crafted Thursday's decision so that if the justices don't accept his conclusion that the ballot printing deadline made the case moot, there are two other reasons the challenge should be thrown out.
One relates to how the calculations were made to bring the number of valid signatures below the 383,923 needed to qualify for the ballot. The judge said it illegally "double counted'' some invalid signatures.
If the justices don't agree with either of those arguments, Moskowitz has an ultimate fallback.
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He said the challengers, recognizing the ballots already were printed, asked him to order state and county election officials to simply not count the votes for or against the measure. Only thing is, Moskowitz said, nothing in state law allows him to issue such an order.
"Perhaps the absence of such express authority in statute is because the Legislature never intended for initiative challenges to go past the ballot printing deadline,'' the judge wrote.
Mussi said initiative foes didn't get a fair hearing.
He noted that Moskowitz was previously rebuffed by the state Supreme Court for refusing to hear some of the evidence from the Free Enterprise Club about duplicate signatures. The justices sent the case back to him with instructions to consider what Mussi and his lawyers had to offer.
Moskowitz did as the high court ordered. He then concluded there are multiple reasons to allow Prop. 140 to stay on the ballot.
Mussi said, "The statements that were made, how he behaved, it's been apparent that after that (Supreme Court order) had happened his mind was made up."
The ballot measure, if approved by voters, would eliminate the current system where the state runs and finances separate primary elections for each political party.
It would be replaced by a single primary where all candidates from all parties and those with no affiliation run against each other. All candidates would be subject to the same signature requirements. All registered voters could participate.
Then the top two vote-getters would advance to the general election, regardless of party. But the measure would also permit the Legislature to allow up to the top five candidates to go on to a runoff, though such a system would require the use of ranked-choice voting.
Aside from his ruling that the clock had run out for a challenge, Moskowitz said there's also the question of math.
Any proposal to amend the Arizona Constitution first has to get the signatures equal to 15% of those who voted for governor in the last election. That is 383,923.
Backers turned in about 575,000 signatures. But a preliminary review of petitions and signatures by state and local election officials concluded 409,474 were valid.
That led foes to hire an outside firm to go through the signatures where, according to testimony presented in court, they found nearly 40,000 were duplicates in which people had signed at least twice. Moskowitz said they proved their case for 37,657 of those, a calculation that would leave the initiative drive short.
But attorneys for Make Elections Fair, the group pushing the plan, brought in Michael O'Neil, a statistical expert, who said the method used to find those duplicate names effectively amounted to "double counting'' those signatures that state and county officials already had disqualified.
Moskowitz acknowledged the method used does comply with the law. But he said it's not fair.
"Doing so would undermine the integrity of the initiative process,'' he said, citing the constitutional right of people to propose their own laws.
More to the point, he accepted O'Neil's calculation that using this "double counting'' would effectively — and unconstitutionally – have raised the threshold of the number of valid signatures needed in this case from 15% as it states in the Constitution to 15.2%.
Mussi said that conclusion runs afoul of a 2022 Arizona Supreme Court ruling, one in which his organization also was involved in fighting. It would have eased the process of registration and voting. In that case, the justices knocked the measure off the ballot, upholding the statutory method of disqualification, including the "double counting.''
But the actual ruling from the high court never specifically addressed the question of whether the underlying law itself is constitutional. An appeal of Moskowitz's ruling in this case could put that issue front and center.
Mussi also contends it was wrong of Moskowitz to conclude that time ran out to challenge the initiative once the ballots were printed.
He said the pair of challenges to Prop. 140 — one by his group and one by some Democrats — clearly were filed on time. Mussi said the blame for the case going beyond the printing deadline lies with Make Elections Fair.
"The backers of this measure spent a month delaying and obstructing and denying that there was any duplicate signatures ... and fought against it as admission of evidence,'' he said. "And Judge Moskowitz allowed that to happen.''
Anyway, Mussi said, even the Supreme Court has concluded that there is no hard and fast deadline that says sending the ballots to the printer makes all pending challenges moot.
That, however, still leaves the question of whether a court can do what initiative foes want: order the votes for the measure to be ignored when the ballots are tabulated.
"There is no Arizona law that expressly provides this court with the authority to grant the plaintiffs' requested injunction,'' Moskowitz wrote.
Mussi, however, said the reverse also is true.
"There's nothing in the law that prohibits them from doing it and nothing in the constitution that prohibits it,'' he said.
Mussi said if a measure doesn't have sufficient signatures, there is a constitutional obligation on the courts to keep it from being voted on or, in this case, having the votes counted.
There is no date set for the Supreme Court to consider the appeal.
