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With fewer than two months to go until the election, uncertainty still surrounds the fate of a ballot measure that would ask voters to do away with Arizona’s partisan primary elections. And the Arizona Supreme Court just added to the confusion.
On Monday, the state’s high court vacated a statement from its Aug. 23 ruling that said if a trial court determines that the Make Elections Fair Act did not collect enough voter signatures, the judge should order the Secretary of State not to count the votes for it.
“It’s clearly been extremely deleterious to our campaign, to put this uncertainty around an issue that has already been ordered on the ballot,” Chuck Coughlin, whose public affairs firm, Highground, is leading the campaign behind the act, told the Arizona Mirror. “And it’s unfair to us. It’s a violation, in my opinion, of civil rights. And we’ll argue that in front of the court.”
The ballots have already been printed, with the Make Elections Fair Act, also known as Proposition 140, already on them. The only question is whether votes cast for the proposition will be counted.
The Make Elections Fair Arizona Act, one of two citizen initiatives that made it onto the November ballot, would amend the Arizona Constitution to create an open primary system where all candidates for federal, state and local offices would face off in a single primary election in place of segregated partisan elections. Those primaries would include all candidates who qualify for the ballot, whether they are affiliated with a political party, or not.
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The goal of the campaign behind the act is to eliminate partisan influence in elections.
A trial court judge already approved Prop. 140 to be placed on the November ballot, saying the political action committee behind it had gathered 40,000 more voter signatures than necessary.
Maricopa County Superior Court Judge Frank Moskowitz initially declined to hear evidence from an opposition group who claimed that Make Elections Fair had not, in fact, collected enough signatures to make the ballot. But the Arizona Supreme Court overturned that decision and told Moskowitz to reopen the case.
On Wednesday, Moskowitz is set to consider evidence that opponents of the proposition allege shows that Make Elections Fair submitted too many duplicate signatures.
In the same order, the high court also wrote that, if the trial court determined Prop. 140 had insufficient signatures to make the ballot, Moskowitz should order Secretary of State Adrian Fontes not to count any vote for the proposition.
Both Fontes, a Democrat, and the campaign behind Make Elections Fair argued to the Arizona Supreme Court that allowing a court challenge to continue after ballots were printed upended 80 years of the court’s own precedents and its own rules. It would also disenfranchise voters, to allow them to mark their choice for or against the proposition, and then decide not to count them, Fontes and the campaign both argued.
In the order issued Monday, the high court’s Chief Justice Ann Timmer wrote that the campaign behind Make Elections Fair should get the chance to make its argument to the trial court that an order telling Fontes not to count the votes would disenfranchise voters.
The issue “should be decided in the first instance by the trial court and would benefit from full briefing and argument,” Timmer wrote.
Coughlin is optimistic that the issue will be resolved before it’s necessary for Make Elections Fair to argue that point. A random sample of the more than 560,000 signatures collected for the proposition determined that more than enough were valid to make it onto the ballot.
The group challenging the Make Elections Fair Act — the Arizona Free Enterprise Club, along with three voters — has argued that more than 40,000 of the signatures they collected were actually duplicates, making them invalid. That would ultimately bring down the signature validity rate for the proposition and disqualify it for the ballot, they argued to the court.
Coughlin told the Mirror that around 9,000 of those challenged signatures had already been eliminated and did not count toward the total that got the act on the ballot.
“You can’t eliminate them twice,” he said. “And that’s what this is about. We feel good about the math. We can’t envision an environment where we don’t win on that.”
Those who oppose the Make Elections Fair Act take issue with its allowance of ranked choice voting in general elections, wherein voters rank their choices if there are multiple candidates they like running for the same office. But Prop. 140 only allows for the possibility of ranked choice voting in the general election, giving the Arizona Legislature the final say on what those elections would look like.
Attorneys representing the challengers did not respond to a request for comment from the Mirror. But in a post on X last week, the Arizona Free Enterprise Club accused Fontes of using taxpayers funds to make a politically motivated argument that the vote for Make Elections Fair Act should be counted, no matter what.
Fontes’ office told the Mirror last week that his argument to the court was based on decades of the Arizona Supreme Court’s own precedents, as well as state statute.
Moskowitz is set to hear evidence from the opponents of Prop. 140 on Wednesday. The Make Election Fair Act campaign will only have to argue on the issue of possible voter disenfranchisement if the judge determines that it didn’t collect enough signatures.
Coughlin told the Mirror that he expects the judge to make a ruling this week.
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