Brennan Bowen, an election attorney with Holtzman Vogel (left) and former Phoenix Mayor Paul Johnson (right) discuss Proposition 140, which would establish a nonpartisan primary, during the Citizens Clean Election Commission debate on Sep. 26, 2024. Photo by Cheryl Evans | Arizona Republic/pool
In the November election, Arizona voters will decide whether to open up the state’s primary elections to include all voters and candidates, or to fortify the status quo with closed, partisan primaries.
In a rare show of bipartisanship during a contentious election season, a diverse group of Republicans and Democrats have gathered behind a campaign to keep the Grand Canyon State’s primary elections partisan. But that’s not necessarily surprising to the proponents of the Make Elections Fair Act.
“The two parties want to hang onto their power,” former Phoenix Mayor Paul Johnson said during a Sept. 26 Clean Elections Commission debate about Propositions 133 and 140.
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The Make Elections Fair Act, or Proposition 140, is a citizen initiative that would amend the state constitution to create open primary elections in which all candidates for an office would appear on the primary election ballot, regardless of political party affiliation or non-affiliation. All voters, regardless of their own party affiliation, would then vote for any candidate or candidates.
Proponents of Prop.140 say that it makes the election process more equitable for independent candidates and voters and aims to fix the issue of extreme divisiveness in politics by forcing candidates to attempt to hear from and appeal to voters outside of their party.
Arizona law currently requires partisan primary elections for any elected office that isn’t explicitly nonpartisan, and those elections are mostly limited to voters registered in that party.
Voters not registered with a party can vote in a partisan primary election, but must request to cast either a Democratic or Republican ballot. Partisan voters who are on the Automatic Early Voting List will receive mail-in ballots every primary election, while voters not registered with a party who are on the Automatic Early Voting List must request an early ballot in the primary.
In 2023, Republicans in the Arizona Legislature voted to put Prop. 133 on the ballot to counter a proposed ranked-choice voting initiative. Prop.133 would amend the state constitution to forbid open primaries and outlaw ranked-choice voting.
In a ranked-choice system, voters rank the candidates from their favorite to least favorite. A process of elimination takes place once voting ends. If no candidate receives a majority of first-choice votes, the candidate with the fewest votes is eliminated. Those voters’ second choices are then counted, and the process continues until someone crosses the 50% threshold.
The ranked-choice voting measure that Republican lawmakers feared never materialized, at least not directly. Its backers reworked their proposal to transform Arizona’s partisan primaries into nonpartisan elections, with a path to ranked-choice voting — but only if legislators or the Arizona Secretary of State authorize it. The resulting initiative, known as the Make Elections Fair Act, qualified for the ballot as Prop. 140.
Opponents of Prop. 140, including the Arizona Republican Party, say that it would increase voter confusion, disenfranchise voters and implement “California-style” so-called “jungle primaries” and ranked-choice voting. California has open primary elections, but does not use ranked-choice voting state-wide. San Francisco and Oakland use a ranked choice system for their city elections.
“Prop 140 is a Trojan horse for California’s failed election system,” AZGOP Chair Gina Swoboda said in a written statement. “Ranked choice voting leaves voters confused and undermines the integrity of our elections. Arizona doesn’t need the mess that California is stuck with.”
Johnson, as well as other advocates of the Make Elections Fair Act, deny that it would require ranked-choice voting.
“The job of opposition is always to confuse you, because if you’re confused, you vote no,” Johnson said during the debate.
While Prop. 140 would open the state’s primary elections to all voters and all candidates, regardless of their party, it would give the state legislature the power to decide how many candidates for each office move on from the primary to the general election. And if the legislature decides that more than three candidates should move on to the general election in a race for one seat, ranked-choice voting would be required.
If the state legislature fails to decide how many candidates will move to the general election by Nov. 1, 2025, that decision would be handed to the secretary of state, a point of contention for the proposition’s opponents.
The Secretary of State’s Office is currently occupied by Democrat Adrian Fontes, and will be at least through January 2027, depending on who voters elect for the post in 2026.
Photo by Jim Small | Arizona Mirror
“This gives self-interested politicians the power to determine how many candidates advance from the primary to the general election, including in the races for their own offices,” election attorney Brennan Bowen, said while arguing against Prop. 140 during the Clean Elections debate. “The secretary of state has never had this power before.”
Bowen is an attorney for Holtzman Vogel, a law firm based in Washington D.C., but with a branch in Phoenix that recently challenged portions of Arizona’s Elections Procedures Manual in federal court. The firm also employs former Arizona Supreme Court Justice Andrew Gould.
Bowen argued that Prop. 140 would result in some parties being completely excluded from the general election. For instance, if a Republican candidate and an independent candidate are the top vote-getters in a primary race where only two candidates advance, Democrats would not have a candidate to elect in the general election.
But Johnson countered that the open primary system would disrupt the existing “broken” system wherein a small fraction of hyper-partisan voters on either side of the aisle — turnout in primary elections typically hovers around 30%, compared to the 60% to 80% turnout in general elections — choose the winners of the partisan primaries. And that winner often goes unchallenged in the general election.
“We have to learn to listen to people who don’t think like we think,” Johnson said.
Proponents of Prop. 140 also say that it would make elections more equitable for independent candidates, who currently must gather tens of thousands more voter signatures than Republican or Democratic candidates to make it onto the November ballot.
That is by design, Johnson claimed, because neither major party wants to give up any power to independent candidates. Among other changes, Prop. 140 would require the same signature threshold for candidates from all parties to make it onto the primary ballot.
Elected officials and groups from both parties are coming out en force to oppose the Make Elections Fair Act, launching the NO on Prop 140 Committee earlier this month.
“Special interest groups should not decide how our elections system operates,” Pinal County Sheriff Mark Lamb and Gould, the co-chairs of the committee said in a statement. Both are Republicans. “Arizonans on all sides of the aisle agree: this scheme to transform our elections into a system found in California is a bad idea. We oppose re-writing our Constitution and imposing such a radical, convoluted scheme on Arizonans.”
The list of groups backing the opposition campaign include some on the far right, like the Center for Arizona Policy, Heritage Action for America and Turning Point Action, as well as the left-leaning League of Women Voters of Arizona and Civic Engagement Beyond Voting and the Coconino and Gila county Democrats.
The Arizona Republican Party is also opposed, but the Arizona Democratic Party is officially neutral.
The Arizona Free Enterprise Club filed a court challenge to the constitutionality of Prop. 140 saying it was too far-reaching and violated the single-subject law for constitutional amendments. The conservative dark money outfit also challenged the number of voter signatures gathered to get Prop. 140 on the ballot, but after a contentious battle that continued even after ballots were printed, the courts ultimately decided that the Make Elections Fair Act would be put to voters in the November election.
Backers of the Make Elections Fair Act include Chuck Coughlin, whose public affairs firm, HighGround, is leading the campaign behind the act, former Republican Arizona Gov. Fife Symington III, former Attorney General Terry Goddard, former Democratic state Reps. Aaron Lieberman and Art Hamilton and former GOP speaker of the Arizona House, Rusty Bowers.
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