On Tuesday, a judge considered the ongoing matter of Prop 140 in April Smith v. Fontes. The case involves a challenge of the validity of Arizona’s ranked choice voting initiative signatures.
At the end of the hearing, the number of challenged signatures was whittled down from over 40,000 to approximately 38,100 to be reviewed by a special master appointed by Maricopa County Superior Court Judge FrankMoskowitz.
Court observers are questioning if the outcome of the case has already been determined in Moskowitz’s mind.
It was evident that there was confusion between the judge and counsels for the plaintiffs, the Make Elections Fair Arizona PAC, and the Arizona Secretary of State on how to determine whether signatures already eliminated by County authorities or the Secretary of State would be present in either the full number of signatures or in “extrapolations.” The extrapolations are created by multiplying a 5% sample by 20 under existing statute to create a “validity rate” that can be applied to the sum total of signatures.
The hearing seemed expressly focused on how much of the evidence of duplicate signatures the court should exclude from consideration, rather than as the Supreme Court directed in Mussi v. Fontes, to “determine whether the exhibits prove any duplicate signatures by clear and convincing evidence.”
Judge Moskowitz appeared more concerned with determining how many exhibits do not prove duplicate signatures, saying, “They’re done. It’s over. It doesn’t matter if the remaining 31,000 or whatever it is are in fact duplicates and maybe double counted, maybe not give ’em credit and say they weren’t double counted. If you can get 4,800 that were double counted, it’s over,” describing what he expects to see in a brief from Make Elections Fair PAC.
Attorney Daniel Arellano, representing Plaintiffs April Smith, Nira Lee, and Joshua Davidian pushed back against this notion saying, “First of all, I just to be clear, I mean these all sound like categorical arguments to me, which I think are precisely what the Supreme Court said not to do. I’ve not seen briefing of this issue. There’s a preview of it. (…) I’ve not actually seen any legal argument on this, but as I listened to this argument here today, judge, I think, again, I forget if it’s Leah v. Hobbs or Leah v. Reagan, but one of the two definitely says that we get to invalidate signatures for reasons other than, in addition to, and outside of the 5% sample. And so if the premise of the committee’s argument is that it is, we have to go with what the county hasn’t validated because that is already multiplied times 20, and we can’t invalidate anything in addition to or separate from that. That is I think a proposition that the Supreme Court has squarely rejected.”
He added, “I think the point is I don’t think we can use this as an avenue to foreclose line by line review of the 38,000 signatures.”
But Judge Moskowitz was quick to retort: “No, I understand that. But even if I said yes, clear and convincing all 38,000, it says proceed accordingly. And my proceed accordingly is my next step is going to be how do I know of whatever number is of duplicates hasn’t been already invalidated. How do I know this signature hasn’t already been invalidated? And I think that would be in the proceed accordingly part of the Supreme Court’s order.”
However, the order from Arizona Supreme Court Chief Justice Ann Scott Timmer made the court’s priority clear, “The trial court must continue with determining whether the initiative is supported by a sufficient number of qualified signatures. This determination should be made as expeditiously as possible to provide the parties and the public certainty.”
In a thread posted to X, the Arizona Free Enterprise Club (AZFEC) paraphrased a comment from the organization’s President Scot Mussi, “This isn’t a debate about dubious matches or concerns of same family members with the same name being confused as a duplicate. All the duplicates submitted to be removed were exact name and address matches that aligned with what was on the voter file. Under state law, you are only allowed to sign a petition once, so they should have been removed. Instead, thousands of people were allowed to sign the initiative petition sheets multiple times, and those signatures were counted.”
This isn’t a debate about dubious matches or concerns of same family members with the same name being confused as a duplicate. All the duplicates submitted to be removed were exact name and address matches that aligned with what was on the voter file.
In a press release the organization cited from the evidence presented that:
When the Prop 140 Committee submitted their signatures to the Secretary of State, around 250 people had signed five or more times.
One individual had signed 15 times.
All those signatures were included in the final tabulation by the Arizona Secretary of State.
In a status update hearing held late on Wednesday, it was determined that Retired Arizona Superior Court Judge Christopher Skelly will lead the signature verification effort as court-appointed Special Master. During the meeting, Judge Moskowitz again referred to a possible stopping point for the signature review, asking Arellano, “Not to be looking at this for one side or the other, but there is a number of 4,800. And the only reason I say that number is because it’s the lowest number we’re talking about. But if that 4,800 number of duplicates is reached um… Does he stop if he knocks out whatever that number is 4,800 of duplicates? So you don’t get to your 33,000 something, something number Mr. Arellano? Does he just stop?”
Arellano, representing the plaintiffs, responded that the Special Master should be checking in with attorneys from both sides “periodically,” however, he added, “We’ve not set that up as any particular kind of benchmark. Nor do I know that we’d be comfortable doing so, since it sort of sets that up as like a goal of sorts.”
The signature checking effort is expected to run through September 16th with a hearing to discuss legal briefs from both sides on Friday.
Arizona, we have a problem. Apparently, the group behind Proposition 140—a ballot initiative aimed to bring California-style elections to our state—got very creative in their signature gathering efforts. In fact, you could say that in many ways, they excelled in duplicating their work. And that’s exactly why Prop 140 should be invalidated.
Back in July, the special interests behind the idea to bring jungle primaries and ranked choice voting to Arizona submitted signatures with the Arizona Secretary of State to qualify the so-called “Make Elections Fair Act” for the November General Election. Just a couple weeks later, a lawsuit was filed after it was determined that a large portion of their signatures were collected in violation of state law. And late last week, we received some good news. The Arizona Supreme Court ruled that the signature challenge lawsuit against Prop 140—which was facing a potential deadline due to the printing of ballots—may continue to ensure that the 40,000 duplicate signatures submitted by the Prop 140 committee are examined and removed from the final tally.
Yes, you read that right. The group that supposedly wants to “make elections fair” is content to do so by counting duplicate signatures (i.e. voters that signed more than once). What does that say about the true nature of this initiative?
The Arizona Supreme Court may have rendered a significant blow to the future of a key ballot measure for the upcoming General Election.
On Friday, the Arizona Supreme Court issued an order in Smith v. Fontes, which was a challenge over the Make Elections Fair Arizona Act (Proposition 140). The court ruled that Prop 140 “will appear on the ballot, assuming ballots are indeed printed in the early morning hours of August 23.” However, the state’s high court projected that if a majority of its justices were to later “disqualif[y] the Initiative, the court should issue an injunction precluding any votes for the measure from being counted.”
The issue at hand involves a challenge to the signatures submitted to the Arizona Secretary of State by the committee supportive of the ballot measure. The parties contesting the submission have argued that there are 40,000 duplicative signatures in the batch, which, if discarded, would bring the initiative under the minimum number required for placement on the ballot.
Proposition 140 is an attempt from the Make Elections Fair PAC to remake the Arizona elections systems through this constitutional amendment on the ballot.
“I am grateful for this thoughtful decision from the Arizona Supreme Court,” said Scot Mussi, President of the Arizona Free Enterprise Club. “At no time did the trial court judge or the committee in favor of the initiative provide evidence as to why these signatures were not duplicates, but instead relied on a strategy of obstruction to run out the clock. The lateness of this challenge did not have to be the case if the lower court had only adhered to the Supreme Court’s earlier directive for all duplicates to be removed from the qualifying count. For any ballot measure – but especially one that would fundamentally transform our elections systems – Arizonans deserve complete confidence that our courts are applying all laws fairly and justly.”
Mussi added, “This isn’t a debate about dubious matches or concerns of same family members with the same name being confused as a duplicate. All the duplicates submitted to be removed were exact name and address matches that aligned with what was on the voter file. Under state law, you are only allowed to sign a petition once, so they should have been removed. Instead, thousands of people were allowed to sign the initiative petition sheets multiple times, and those signatures were counted.”
In its order, the Court wrote, “There is no statutory directive that a court resolve an election challenge like this one before the ballot printing deadline. Regardless, this Court, and indeed the trial court, has consistently endeavored to resolve initiative challenges before the ballot printing deadline… 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.”
According to the Arizona Free Enterprise Club, this measure “is seeking to enact a California-style election scheme built around ranked choice voting and jungle primaries.” On the other hand, an advocate for the Make Elections Fair Act recently maintained that Prop 140 “represents an opportunity to improve both our elections and our state government.”
Daniel Stefanski is a reporter for AZ Free News. You can send him news tips using this link.
On Friday, the Arizona Free Enterprise Club (AZFEC) filed a lawsuit against the State of Arizona, Secretary of State Adrian Fontes, and the ‘Make Elections Fair’ political committee. The group is challenging the initiative to place open primaries, ranked choice voting, and the elimination of public funding in partisan elections on the November ballot as a single item. The AZFEC, along with three co-plaintiffs, is contesting the constitutionality of The Make Elections Fair Arizona Act, on the basis that it violates the Arizona Constitution’s “Separate Amendment Rule,” which prohibits multiple constitutional amendments from being combined into a single ballot measure.
In a press release, the Arizona Free Enterprise Club explained, “If placed on the ballot and approved by voters, the Make Elections Fair Arizona Act would radically change how Arizonans select and approve candidates for public office, essentially copying the California voting system.”
Broken down under the premise of the “Separate Amendment Rule,” the Make Elections Fair Arizona Act constitutes twelve separate amendments according to the AZFEC. The act touches three disparate areas of Arizona election law, directly amends four different sections of the Arizona Constitution, and adds an entirely new section, whole cloth.
🚨 BREAKING: We just filed a lawsuit against the Make Elections Fair Arizona Act (which would essentially copy the California voting system) because it contains multiple separate constitutional amendments in violation of the Arizona Constitution. 🧵https://t.co/SZdu3h3aRV
— Arizona Free Enterprise Club (@azfec) July 26, 2024
Scot Mussi, President of the Arizona Free Enterprise Club said in the release, “In their rush to undermine the will of Arizona voters for future elections, the special interests that drafted this measure ignored our laws and our Constitution. This egregious disregard for law and order exudes arrogance from these parties and should disqualify their measure from the November ballot.”
In the text of AZFEC’s complaint, attorneys for the organization cited, “Article XXI, Section 1 of the Arizona Constitution, which states that “[i]f more than one proposed amendment is submitted at any election, the proposed amendments shall be submitted in such a manner that the electors may vote for or against such proposed amendments separately.” They added that, in past precedence, the Arizona Supreme Court has upheld that “the purpose of the single-subject rule is to eliminate the ‘pernicious practice of “log-rolling,'” whereby voters are ‘forced, in order to secure the enactment of the proposition which [they] consider[] the most important, to vote for others of which [they] disapprove[],’” the process of packaging a proposition the voters might support with others they may not.
As detailed in the release, even the drafter’s website readily acknowledged that the initiative included multiple amendments in the no longer online section: “Initiative Language” by presenting the amendments in four distinct categories in a format showing each issue as a “Current Problem” and a solution labeled “MAKE IT FAIR.”
ARIZONA FREE ENTERPRISE CLUB V. STATE OF ARIZONA and ADRIAN FONTES §104 ( About Page, MAKE ELECTIONS FAIR ARIZONA, https://www.makeelectionsfairaz.com/about (last visited July 24, 2024).ARIZONA FREE ENTERPRISE CLUB V. STATE OF ARIZONA and ADRIAN FONTES §104 ( About Page, MAKE ELECTIONS FAIR ARIZONA, https://www.makeelectionsfairaz.com/about (last visited July 24, 2024).
In the complaint, the plaintiffs appeal for relief in the form of a declaration from the court that the initiative is in violation of the Arizona State Constitution, and a request for a mandamus order to compel Secretary of State Adrian Fontes to carry out his “nondiscretionary duty to comply with the Separate Amendment Rule set forth in Article XXI, Section 1 of the Arizona Constitution.”
As reported by the Arizona Mirror, the Make Elections Fair Arizona Act has already been the subject of a legal battle between the Make Elections Fair Arizona political action committee and Arizona Legislative leaders, House Speaker Ben Toma and Senate President Warren Petersen, regarding the descriptive language of the initiative on the November 2024 ballot.
The description in question reads, in part, that the proposition, “would amend the Arizona Constitution to: 1. Allow for the use of voter rankings at all elections held in this state to determine which candidate received the highest number of legal votes,” continuing to break down the revisions to the primary election and general election procedures.
Attorneys for the PAC complain in the lawsuit, “By beginning with the changes the Initiative permits regarding the use of voter rankings, the adopted analysis improperly amplifies those permitted changes and improperly understates the Initiative’s required changes to the primary-election procedures.” They suggest that this is misleading.
This fall, the people of Arizona will have a number of critical decisions to make about the future of our state. But one initiative may be the most important issue facing voters in November.
Earlier this month, the special interests behind a plan to bring California-style jungle primaries and ranked choice voting to Arizona submitted signatures with the Arizona Secretary of State to qualify the so-called “Make Elections Fair Act” for the November General Election. If approved, this proposed constitutional amendment would not only make our elections unfair, but it would radically change how Arizonans select and approve candidates for public office in several alarming ways.
The Measure Grants One Politician Too Much Power
It’s never a good idea to give one politician total power over anything—especially an election—but that’s exactly what the Make Elections (Un)Fair Act would do. The measure grants one politician, in this case the Secretary of State, the power to determine how many candidates will appear on the general election ballot for each race. On top of that, the Secretary of State could even decide how many candidates advance in his or her own race…
