Lawmakers to Supreme Court: We described the ‘Make Elections Fair Act’ fairly

Photo by Jerod MacDonald-Evoy | Arizona Mirror

Arizona legislators say a trial court judge was wrong to conclude their description of a ballot proposition to end partisan primaries was “misleading” and order them to rewrite it, they told the state Supreme Court Friday in an appeal.

Maricopa County Superior Court Judge Melissa Iyer Julian ruled Monday that a legislative panel responsible for writing summaries of ballot measures that are sent to every Arizona voter wrote a misleading description of Proposition 140, a citizen initiative also known as the Make Elections Fair Act. 

If voters approve it in November, the measure would 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 registered voters would be able 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. 

Make Elections Fair Arizona, the political committee that gathered signatures to get Prop. 140 on the ballot, filed a lawsuit contending that the Legislative Council’s description of the measure unfairly focuses on the possibility for ranked-choice voting, which is not mandated by the proposed constitutional amendment.

The judge agreed. 

But lawmakers are arguing that Julian erred in her ruling and want the Arizona Supreme Court to reverse the decision. 

At the heart of the matter is the order in which the description outlines what Prop. 140 would do. Lawmakers contend that the order they chose best describes the initiative, while its backers claim it intentionally draws attention to a mechanism that would allow for — but not require — ranked-choice voting in order to stoke voter opposition. 

Prop. 140 was written to allow for ranked-choice voting, but only if the legislature, Secretary of State or voters allow for more than two candidates to advance from the primary to the general election. Julian ruled that the legislature’s description does not supply the proper context on voter ranking and renders the description misleading.  

But lawmakers said the order of the description is irrelevant. 

“In other words, if it was reasonable for a (Legislative) Council analysis to describe something as a change in the law, and it does so in neutral language, then the Court should not go any further,” Beau Roysden, the attorney for lawmakers, said in his appeal. 

The political committee behind the ballot initiative sued legislators in July after they approved the language unanimously, saying that it unfairly described the initiative. 

Julian ordered lawmakers to rewrite the ballot initiative description by Aug. 29.

Prop. 140 has faced other legal challenges including a victory on Aug. 9, when a different judge ruled that the initiative does not violate the state constitution’s single-subject rule. Opponents from the Republican and Democratic parties are also challenging the validity of the initiative’s signatures in an effort to get it tossed off the ballot.