Fontes: Voters should decide fate of Prop 140, not the courts

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Secretary of State Adrian Fontes told the Arizona Supreme Court on Friday that voters, and not the courts, should decide the fate of the Make Elections Fair Act. 

With ballots in many Arizona counties already sent to the printers, there’s no question that Proposition 140, as the proposed constitutional amendment is known, will be on those ballots. The question is whether the votes for or against it will count for anything after the Supreme Court last month ordered a trial court to reconsider a challenge to the petition signatures need for the measure to qualify for the ballot.

The trial court had previously rejected proposed evidence that some 40,000 signatures were actually duplicates, making them invalid. That judge had ruled Prop. 140 had about 32,000 petition signatures more than needed.

“No provision in the Arizona Constitution permits a measure to go to the ballot, and allow millions of voters to vote on it, only for those votes to be invalidated,” Kara Karlson, an assistant attorney general, wrote on behalf of Fontes in a Friday court filing. 

After the Supreme Court told the trial court judge he needed to reopen the case and examine that evidence to determine whether Prop. 140 has the signatures required to go before voters in November, the chief justice issued an order spelling out how the courts could order elections officials to simply not count any votes cast on the measure if the renewed examination of the signatures results in the ballot measure being disqualified.

If voters favor it, the Make Elections Fair Act 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 instead of segregated partisan elections. Those primaries would also include candidates who are politically unaffiliated. 

All voters, regardless of party affiliation, would get the chance to vote for their favorite candidate without the need for separate ballots. Races that are currently considered safe bets for either political party would likely see new competition and upended expectations. 

The political committee behind the Make Elections Fair Act argued on Aug. 28 that the Arizona Supreme Court should reconsider its decision since ballots would be printed before the court case concludes. The high court’s decision not to rule on the signature challenge before the ballot-printing deadline, and then threatening to ignore votes cast on the measure, would disenfranchise voters in an unprecedented way, the campaign alleged. 

But the plaintiffs in the signature challenge argued that the evidence of duplicate signatures submitted to the court deserved to be considered. 

Daniel Arellano wrote last month on behalf of the challengers that some of the duplicate signatures were so obviously identical that there should be no question, specifically pointing out 15 signatures from a single voter.

The state’s high court had said it wasn’t bound by ballot-printing deadlines when it sent the signatures back to the lower court. 

“(T)he courts’ role is to dispense justice,” Chief Justice Ann Scott Timmer wrote in the Aug. 23 order. “Courts cannot be forced to rule rashly to meet a ballot printing deadline or provide the parties with certainty.”

But Fontes, echoing the Make Elections Fair committee’s argument, told the high court that it was upending decades of its own precedents by allowing a challenge to a ballot initiative to continue past the ballot-printing deadline. 

“The appropriate remedy is simple,” Karlson wrote. “Once the ballots have gone to print, it is in the hands of Arizona’s voters. The person contesting an issue (or candidate) can make a case to the voters, but the Courts cannot usurp the voters’ decision once it goes to them.”

She also alluded to a trend toward election denialism in Arizona that has occurred over the past four years, and that a court ordering the Secretary of State not to count votes that had already been cast could heighten “already difficult conditions.”

“It is difficult to imagine a more opaque process than one in which voters will be faced with a dozen propositions to vote on, only to find out later that their vote on one of those issues meant nothing, because the Secretary was enjoined from including it in the final canvass,” Karlson wrote. “This is the wrong precedent to set, regardless of the circumstances surrounding the election.”

Karlson pointed out that challengers and judges in election cases always know that they’re on a strict deadline and that they had ample time to make their case, adding that ballots sent to Arizona voters serving in the military and living overseas were due to be sent by Sept. 21. The court case might not be resolved by that date, which is closely followed by the beginning of early voting on Oct. 9. 

“Arizona has a strong public policy of favoring certainty and finality in elections,” Karlson wrote. “Arizona’s election officials fulfilled their statutory duties by verifying hundreds of thousands of petition signatures within the unforgiving statutory deadlines.”

In contrast, the challengers have not been held to the same strict deadlines, she argued. 

“Given the far-reaching implications of this Court potentially enjoining the canvass, the Secretary requests this Court to reconsider its previous ruling and affirm the principle that once the ballots have gone to print, any challenge must end,” Karlson wrote.