The ‘open primaries’ ballot measure seemingly has too few signatures, but its fate is unclear

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A ballot proposition to end partisan primaries appears to have thousands of duplicate signatures, putting it below the threshold to be placed on the ballot. But what that means for voters remains to be seen.

Proposition 140 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. 

The proposal, known as the Make Arizona Elections Fair Act, would allow all registered voters to choose from all the candidates in the primary, 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.

A court-ordered expert released their report Tuesday and found that 99% of those 38,000 signatures were duplicates. The special master report concluded that 37,657 signatures were duplicates, which puts the proposition under the threshold by approximately 3,300 signatures. 

That throws into question what the courts will do about Prop. 140, since ballots have already been printed and the resolution of the signature challenge is taking place weeks after the typical time frame to litigate ballot measures. 

The case is continuing because the Arizona Supreme Court sent the allegedly duplicate signatures back to the trial court — which initially didn’t consider them — a day before the ballot-printing deadline. The state Supreme Court also said in that order that, if the signature challenge prevails, the trial court would need to issue an injunction to bar elections officials from counting votes cast on Prop. 140, though the high court walked that back this week. 

In a court hearing Wednesday to discuss the special master’s report, proponents of the measure argued that the case against it is currently “moot,” citing previous rulings in which the courts have said that challenges on election-related issues need to come before the ballot printing deadline. 

Ballots have been printed because they will be sent to overseas and military voters this weekend. Early ballots will be sent to other voters on Oct. 9. 

The six-hour-long hearing Wednesday focused mainly on how the signature-gathering process works, with a focus on how signatures are checked and challenged. Prop. 140’s backers argued that, since the secretary of state and other election officials had certified the signatures after performing the checks mandated by state law, that meant the initiative was in the clear. 

But opponents argued that the special master’s report has shown otherwise, and they now want the boards of supervisors in all 15 of Arizona’s counties to be a party in the case so that they can ask the court to order any votes for Prop. 140 be disqualified. 

Proponents argued that doing so would mean voter disenfranchisement and goes against the constitutional duties of the counties and secretary of state, who are constitutionally obligated to certify election results. 

After the lengthy hearing, Maricopa County Superior Court Judge Frank Moskowitz said he’d make a ruling Thursday morning. 

No matter which way the judge rules, it will mean another appeal to the Arizona Supreme Court.

Backers of the measure argued in court that many of the signatures deemed duplicates had been eliminated already. 

“Our argument in Court today will show that the random sample analysis, which determines if an initiative measure makes the ballot, will show that more than 9,000 of those duplicates have already been eliminated and our opponents’ effort to get them counted twice is unconstitutional,” Chuck Coughlin, who is running the campaign backing Prop. 140, said in a statement to the Arizona Mirror. “We are extraordinarily confident that the court understands this effort to undermine Arizonans constitutional right to place items on the ballot for Arizona voters to consider.”

Meanwhile, opponents saw the special master’s analysis as a major win and are urging the court to enjoin the proposition from having votes cast for it tabulated in November. 

“As we knew all along, Prop 140 lacks the signatures required for this measure to even make it to the ballot in the first place, let alone be considered by voters in November,” Arizona Free Enterprise Club President Scot Mussi said in a press release about the report. “They were caught, and now we hope the court does the right thing and enjoin the measure from tabulation in the fall.”