Arizona open primaries proposal clears first legal hurdle

PHOENIX — A proposal to create open primaries in the state does not violate constitutional restrictions limiting ballot measures to a single subject, a judge ruled Friday.

But that still doesn’t guarantee Arizonans will get a chance to vote for or against Proposition 140.

In his six-page ruling, Maricopa County Superior Court Judge Frank Moskowitz did not dispute claims by challengers that the initiative would make multiple changes to the Arizona Constitution in how elections are run. If approved by voters, it also would exempt the proposal from having to come up with a new tax or source of revenues to pay for the expenses.

But the judge said that doesn’t matter.

“The initiative’s provisions are sufficiently related to a common purpose or principle,’’ Moskowitz said. “That common purpose or principle and general topic is reforming candidate elections.’’

If approved, Proposition 140 would set up a system so that all candidates for all federal, state and local offices would run against each other in a single primary. That would encompass not only the candidates from recognized parties but also those who are politically unaffiliated.

It also would mean that all registered voters could choose among all candidates.

A second part leaves it to the Legislature to decide what happens after.

As crafted, lawmakers could simply have the top two contenders face off in the general election, even if both were from the same party.

But the plan allows — but does not require — lawmakers to allow up to five candidates to advance to the general election. And if that is the case, there would be a system where voters rank their choices from first to last.

Under “ranked choice voting,” if no candidate gets at least 50% on the first round, the person who came in last is eliminated and the ballots of those who chose that person as their first choice are recounted, this time using those voters’ second choice. The process is repeated until someone gets 50%.

The measure was challenged separately by Democratic and Republican interests who would lose the ability to ensure someone from their own parties makes it onto the general election ballot. And the heart of their argument was that Make Elections Fair, the group pushing the measure, was trying to put too many unrelated things into a package.

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Attorney Daniel Arellano, for example, said his clients would have no legal problem with a ballot measure that simply created open primaries. But he told Moskowitz that adding everything else into a take-it-or-leave-it proposal for voters was illegal.

The judge was unconvinced.

“While primary and general elections may serve different functions, that does not render them topically unrelated for purpose of an initiative whose common purpose or principle and general topic is reforming candidate elections. He also said that the provision about exempting the plan from having to come up with a revenue source to administer the program also is “sufficiently related’’ to that goal.

Moskowitz also rejected arguments by challengers that petition signers could have been misled.

Arizona law requires initiative backers to prepare a 200-word summary that has to be attached to the front page of the petitions.

“The summary serves as the ‘elevator pitch’ that alerts prospective signatories to the measure’s key operative provisions, enabling them to decide in short order whether to sign the petition, refuse to do so, or make further inquiry about the measure,’’ the judge explained.

But Moskowitz said the summary does not have to be impartial to meet the legal requirement.

“Reasonable people can differ about the best way to describe a principal provision, but a court should not enmesh itself in such quarrels,’’ he wrote. “If the chosen language would alert a reasonable person to the principal provisions’ general objectives, that is sufficient.’’

Friday’s ruling does not end the legal fight — and not only because the challengers have the opportunity to seek Supreme Court review.

Now that Moskowitz has determined the initiative wording itself is not legally flawed, he has scheduled hearings for this coming week to hear arguments over whether proponents submitted enough valid signatures.

Foes contend that some paid or out-of-state circulators had not properly registered with the Secretary of State’s Office as is required by law. And that would disqualify the signatures they had gathered.

Backers turned in about 540,000 signatures. At least 383,923 have to be found valid to allow the issue to go on the November ballot.