Court rejects challenge to ‘open primaries’ measure, says votes for Prop. 140 will be counted

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A Maricopa County Superior Court judge said that a ballot proposition to end partisan primaries in Arizona will have votes cast for it counted after all. 

The ruling is the latest development in the ongoing saga around Proposition 140, which would amend the Arizona Constitution to create an open primary system in elections, though it won’t be the final word. 

Partisan opponents of the ballot measure will appeal the matter to the state Supreme Court, which last month took the unprecedented step of allowing the challenge to Prop. 140’s place on the ballot to continue past the deadline for ballots to be printed.

The proposal, known as the Make Arizona Elections Fair Act, would allow all registered voters to choose from all the candidates in the primary, regardless of their party affiliation, and the top vote-getters would advance to the general election, even if they don’t represent different parties. 

The proposition has been facing a litany of legal challenges, including one brought by the conservative Arizona Free Enterprise Club, who had contended that 38,000 of the voter signatures backers had gathered to qualify the measure for the ballot were duplicates — enough to put it below the minimum threshold to go to voters in November.

Initially, Maricopa County Superior Court Judge Frank Moskowitz declined to consider the evidence of the duplicate signatures, citing a lack of time to evaluate them prior to the ballot-printing deadline. But the day before that deadline, the Arizona Supreme Court ordered him to reopen the case and determine whether there were enough duplicate signatures to disqualify Prop. 140. 

The Arizona Supreme Court in that same ruling said that, if the trial court determines that Make Elections Fair did not collect enough signatures, Moskowitz should order elections officials not to count the votes for Prop. 140. 

But after the backers of Make Elections Fair asked the high court to reconsider its order, citing 80 years of precedent and the court’s own rules that were ignored, the Supreme Court this week walked back that decision. 

In his ruling Thursday, Moskowitz agreed with Make Elections Fair, whose attorneys argued that an injunction against counting votes for Prop. 140 would be “moot,” considering the challenge is going well past the ballot printing deadline of Aug. 23. 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. 

Ballots for overseas and military voters will be sent out this weekend. Early ballots will be sent to other voters on Oct. 9. 

Moskowitz also said in his ruling that the “double counting” of invalid signatures, as the challengers sought, would violate the state and U.S. constitutions. 

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

The double-counting, Moskowitz argued, would increase the constitutional threshold of signatures a ballot initiative needs from 15% to 15.2% of voters, which he said is ultimately “unconstitutional.” Ballot initiatives require 15% of the number of votes cast for governor during the last cycle in order to qualify for the ballot. 

Moskowitz also 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 challenge doesn’t contemplate such a remedy. 

“That is not a sufficient basis for this Court to grant such a remedy, especially given the injunction allowable under (the law), the statute upon which Plaintiffs initially brought this action, does not include enjoining the canvassing of votes,” Moskowitz wrote. “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.” 

Backers of the measure celebrated the ruling and said they are confident Moskowitz’s ruling will withstand an appeal to the Supreme Court. 

“This is an undeniable triumph for Arizona voters,” said Sarah Smallhouse, the chair of the Make Elections Fair Committee. “Prop 140 is officially on the ballot and every vote will be counted. This ruling solidifies that our democratic process cannot be undermined by frivolous legal tactics.”

Chuck Coughlin, the political consultant running the Prop. 140 campaign, said in a press release that “the Supreme Court should quickly affirm the trial judge’s thorough and well-reasoned ruling.” 

The conservative Arizona Free Enterprise Club contends that the initiative still lacks the required number of signatures and are hopeful that the Arizona Supreme Court will once again shoot down Moskowitz’s ruling. 

“The bottom line is that, after the removal of the duplicate signatures, Prop 140 lacks the required number of valid signatures needed to qualify for the ballot,” Arizona Free Enterprise Club President Scott Mussi said in a press release. “We are confident that after a careful review of the facts, ruling, and trial court record, the AZ Supreme Court will again overturn this outrageous ruling by Judge Moskowitz and enjoin Prop 140 from being tabulated.”