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Opponents of a ballot measure that would end partisan primaries in Arizona said a trial court judge misinterpreted state law when he ruled earlier this month that the proposal’s backers gathered enough signatures to qualify for the ballot — and said that, even if the signatures were short of the threshold needed, it’s too late to bar voters from considering the measure.
Partisan critics of Proposition 140, known as the Make Arizona Elections Fair Act, asked the Arizona Supreme Court to order that any votes for the measure should be ignored and not counted.
Backers of Prop. 140, meanwhile, told the state’s seven justices that there isn’t a case at all, since the proposition is already on ballots that have been mailed to overseas and military voters, and will be sent to in-state early voters early next month.
“The Make Elections Fair Arizona Act is on the ballot. Under long standing precedent, that means Plaintiffs’ lawsuit to keep the Initiative off the ballot is moot, and became moot a month ago, when ballots were printed,” attorneys representing the committee said in a filing Friday.
The saga surrounding Prop. 140 has now extended more than a month past the ballot-printing deadline that has for decades served as a practical — though informal — deadline to resolve legal challenges to ballot measures. The situation was created by the Arizona Supreme Court, which sent a case challenging the signatures for the Make Elections Fair Act back to the trial court for further review just a day before that ballot-printing deadline.
The high court reasoned that Maricopa County Superior Court Judge Frank Moskowitz had wrongly excluded evidence that the partisan critics of Prop. 140 said proved nearly 40,000 voters had signed the initiative petitions twice, leaving it with too few signatures to make the ballot.
In the weeks after ballots were sent to the printer, with Prop. 140 on them, Moskowitz and the trial court evaluated those signatures, nearly all of which were, indeed, duplicates.
But Moskowitz ultimately ruled that the measure both qualified for the ballot and, even if it had fallen slightly short, there was no constitutional way to ignore votes for or against it. The judge said the opponents of Prop. 140 could only prevail if some of the signatures they submitted as evidence were counted — and declared invalid — twice. Some of the signatures had already been invalidated by county elections officials during the signature-verification process that every initiative measure goes through.
Moskowitz ruled that the “double counting” of invalid signatures would violate the state and U.S. constitutions, and it would unconstitutionally increase the threshold of signatures a ballot initiative needs from 15% to 15.2% of voters. Ballot initiatives are required by the Arizona Constitution to file signatures of at least 15% of the number of votes cast for governor during the last cycle in order to qualify for the ballot.
Moskowitz also ruled that an injunction against counting votes for Prop. 140 would be “moot,” considering the challenge has gone on well past the Aug. 23 deadline for ballots to be sent to the printer. Previous rulings cited by the proponents showed that, despite there being no statutory requirement to resolve challenges before the deadline, many courts have erred on making sure to promptly decide cases due to that deadline.
The judge further said the court has no authority to issue an injunction that would disallow votes from being counted if the initiative was found to be lacking the required amount of signatures, adding that the law that allowed for the signature challenge doesn’t contemplate such a remedy.
Partisan opponents of the measure, led by the conservative Arizona Free Enterprise Club, quickly appealed to the Arizona Supreme Court. In a filing this week, they told the court that Moskowitz erred in his conclusion that eliminating petition signatures twice was unconstitutional.
“[T]he Sixth and Ninth Circuits have upheld the constitutionality of Michigan and Oregon’s random-sampling verification laws, which provides further support that (the law) does not unreasonably hinder or restrict the right to initiative as a matter of Arizona law,” attorneys representing Arizona House Speaker Ben Toma and Senate President Warren Petersen said in a brief filed with the court.
The attorneys for the lawmakers also contended that a threshold of 15.2% would not have overly burdened the committee in gathering signatures.
“Other than the mathematical consequence of minimal double counting, which the Committee inflicted upon itself by submitting invalid signatures, the Committee provided no other evidence that (the law) inhibits or restricts the right to initiative, despite it being in operation for 34 years,” the brief said. “Its expert did not do any analysis about the actual practical burden on a committee to collect 15.2% versus 15%.”
The Free Enterprise Club made similar arguments, and asked the Supreme Court court to reverse the ruling and enter an “injunction barring counting of votes for Proposition 140.”
“To be sure, an injunction against the counting of ballots is a second-best remedy compared to not placing the proposition on the ballot in the first place,” the AFEC attorneys said. “But here, such an injunction is the only available remedy because the Superior Court unnecessarily delayed, and repeatedly committed reversible error, in resolving this case.”
The group argues that the court’s ruling of “mootness” is a way for it to “insulate its decision from appellate review because there simply was no time left to correct its errors.”
Meanwhile, the campaign backing Prop. 140 told the high court that, not only is the case moot, but the challengers can only prevail in their signature challenge by eliminating some voters’ signatures twice, which it says violates the state’s constitution by increasing the 15% threshold.
“Regardless, the Court could not and should not countenance the remedy Plaintiffs seek: an order throwing out the votes Arizonans cast for the Initiative,” the attorneys wrote. “Plaintiffs call that remedy ‘modest.’ Far from it. No Arizona court has ever ordered such a remedy, and this Court should not be the first.”
Proponents also argued that applying Arizona law in the way the opponents are asking would violate the Equal Protection Clause of the United States constitution by giving “greater weight to some signatures over others.”
Maricopa County Recorder Stephen Richer also filed a brief in support of the proposition being on the ballot. A brief by Attorney General Kris Mayes took no position, but said that any future challenges “must be completed by the start of the ballot-printing process.”
Former Secretary of State and Republican state Sen. Ken Bennett and with former Maricopa County Recorder Helen Purcell filed a brief with the court that took no stance, but argued that the court should uphold the lower court’s ruling and “let the voters decide,” saying that the ballot-printing deadline should have marked the end of the challenges.
The court is expected to issue a ruling on the case over the weekend.
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