The ‘open primaries’ measure will appear on the ballot, but votes for it might not be counted

Photo by Getty Images

Voters will see a ballot proposition to end partisan primaries on their ballots in November, but whether their votes will actually count remains very up in the air.

If they approve Proposition 140, it 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 Arizona Supreme Court last week declared the ballot measure is constitutional, rejecting a legal challenge mounted by the Republican and Democratic parties and ordering elections officials to place Prop. 140 on the ballot. That order came just before the deadlines counties faced for sending ballot to be printed. 

However, another legal challenge on the signatures gathered for it to be placed on the ballot is still ongoing. 

At issue now is determining whether some 40,000 signatures that were already deemed valid are, in fact, duplicates, which would jeopardize the measure’s place on the ballot. A trial court judge had earlier ruled against the signature challenge, determining that Prop. 140 had about 32,000 petition signatures more than needed.

But the Arizona Supreme Court said the lower court judge improperly refused to consider the evidence plaintiffs said proved there were tens of thousands of duplicate signatures, and told the judge he needs to reopen the case and examine that evidence to determine whether Prop. 140 has the needed signatures to go before voters in November. 

And even though the deadline to change what will appear on ballots has passed, the Supreme Court said the ability of voters to have their voice on Prop. 140 remains up in the air.

“We also recognize the desire for certainty. But the courts’ role is to dispense justice. Courts cannot be forced to rule rashly to meet a ballot printing deadline or provide the parties with certainty,” Chief Justice Ann Scott Timmer wrote in the court’s Aug. 23 order. 

There’s little doubt that the case will end up back in front of the Supreme Court after the trial court evaluates the allegedly duplicate signatures. If the ultimate ruling is that the Make Arizona Elections Fair Act didn’t get enough signatures, then the court will issue an injunction disallowing any votes for the measure to be counted. 

“If the court rejects Plaintiffs’ challenge, the voters will decide whether the Initiative should be enacted into law. If the court disqualifies the Initiative, the court should issue an injunction precluding any votes for the measure from being counted,” Timmer wrote.  

After an emergency hearing last week, the trial court case won’t resume until Sept. 3.