Arizona’s top court hands victory to backers of open primary push

Arizona’s top court handed a victory Friday to backers of a ballot measure that would amend the state constitution to allow for open primaries, ruling that votes must be counted amid a dispute over signatures.

The ballot measure, Proposition 140, would create an open primary system in which registered voters can cast their ballot for the candidate of their liking, regardless of party affiliation. The top two finishers would then advance to the general election, even if they are from the same party.

Opponents of the measure, dubbed the “Make Arizona Elections Fair Act,” filed challenges, arguing the campaign had too many duplicate signatures and should never have qualified for the ballot.

While election officials found that nearly 40,000 signatures were indeed duplicates, they said the measure still had enough votes to qualify and that there was no legal way to stop the counting of votes once ballots were printed.

Arizona Supreme Court Chief Justice Ann A. Scott Timmer issued an order Friday upholding a trial court decision in September that the measure had enough signatures to move ahead, and dismissed the challenge from opponents.

Maricopa County Superior Court Judge Frank Moskowitz had initially turned down the request to hear evidence about the signatures. But Arizona’s Supreme Court overruled it and ordered Moskowitz to consider the evidence presented by the opponents of Proposition 140. 

Arizona’s highest court said in the same order that if Moskowitz discovered enough faulty signatures that would disenfranchise the ballot measure, then election officials should not even count the votes for it. But amid pushback from Arizona Secretary of State Adrian Fontes, who argued that would disenfranchise voters, the high court reevaluated and reversed its decision.  

Friday’s ruling effectively upheld Moskowitz’s decision last month.

“This Court is unable to find any rational or other basis for ‘double counting’ invalid signatures in this case,” Moskowitz said in the Sept. 19 ruling. “Applying the statutorily mandated ‘double counting’ of invalid signatures in this case would unreasonably hinder or restrict the Initiative and unreasonably supplant its purpose.”

Backers of Proposition 140 celebrated Friday’s decision, saying it was a step toward eliminating hyperpartisan primaries in Arizona.

“The Make Elections Fair Commitee is thrilled with our latest victory for Prop. 140 before the Supreme Court. 32 days from now we will celebrate again when all Arizonans are liberated from the grip of partisan primary elections. It’s time to move forward. It’s time for open primaries in Arizona,” said Sarah Smallhouse, the group’s chair.

Opponents of the measure were upset by the ruling. Scot Mussi, the president of the Arizona Free Enterprise Club, suggested the proposition’s backers intentionally delayed the review of signatures.

“Our organization proved that the special interest groups attempting to hijack Arizona’s elections systems lacked the minimum number to qualify for the ballot to even be considered by voters in November,” Mussi said.