The Supreme Court ignored 80 years of precedent and its own rules, initiative backers argue

Photo via Getty Images

The political committee behind a ballot proposition to end partisan primaries is asking the Arizona Supreme Court to reconsider its order last week that allowed a challenge to the initiative’s place on the ballot to move forward, even after counties have begun printing ballots, calling the court’s action “unprecedented” and contrary to more than 80 years of case law. 

At issue is determining whether some 40,000 signatures gathered for Proposition 140, the Make Elections Fair Act, that were already deemed valid are actually 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 Supreme Court on Aug. 22 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 needed to reopen the case and examine that evidence to determine whether Prop. 140 has the signatures required to go before voters in November. 

Attorneys representing Make Elections Fair, the political committee behind gathering the signatures, filed a motion on Aug. 28 telling the Supreme Court that it stepped outside its own precedent — and court rules — and could end up disenfranchising Arizona voters. 

In its previous ruling that sent the issue back to a trial court, the Supreme Court said that, if the signatures are ultimately invalidated, then any votes cast for Prop. 140 will not be counted. 

The ballot measure 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 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. 

One of the key arguments made by the committee’s attorneys is that counties across the state have hit their deadline of when ballots have to be finalized in order to be printed for early ballots, overseas ballots and the general election. Ballots for military members and voters overseas start being sent out in Maricopa by September 21 and early ballots begin to be sent out by October 9. 

“By requiring this litigation to continue beyond the start of the ballot printing process, the Order breaks with eight decades of precedent that petition challenges must end before ballot printing begins,” the attorneys wrote. 

The committee argues that, in previous challenges before the court, it was determined that challenges had to be resolved prior to the ballot printing deadline and the order creates a “risky path.” 

“It allows Plaintiffs’ signature challenge to continue after the counties have begun the process of printing ballots that will include the Initiative,” the attorneys wrote. “As a result, the Order invites and indeed contemplates the risk that Arizona voters will vote for the Initiative and later have their votes thrown out.” 

And it’s exactly this “disenfranchisement” that the court has previously tried to avoid in other cases by making a final determination prior to the ballot deadline. 

In their request for the Supreme Court to reconsider its action, attorneys for the committee wrote that the justices are upending procedures, rules and case law that will affect far more than Prop. 140.

“The Order also creates a playbook for future initiative opponents to follow,” they wrote.

In the court’s order last week, Chief Justice Ann Scott Timmer dismissed those concerns. 

“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,” Timmer wrote in the 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.