In a hearing on Wednesday with Maricopa County Superior Court Judge Frank Moskowitz, the fate of Prop 140, the open primary, ranked-choice voting initiative, could be decided.
The final report of the court-appointed Special Master, Retired Arizona Superior Court Judge Christopher Skelly, has revealed that of the original 41,387 pairs of signatures challenged, a total of 37,657 or approximately 99%, were in fact duplicates. In a press release on the case April Smith v. Fontes, the Arizona Free Enterprise Club noted that the determination by Judge Skelly now places Prop. 140 thousands of signatures short of the minimum qualification to appear on the Nov. 5th ballot. To be precise, it would be 3,300 signatures short of the standard reaffirmed in the Arizona Supreme Court ruling Mussi v. Hobbs (2022).
Scot Mussi, President of the Arizona Free Enterprise Club said in a statement, “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. Even though they knew about the illegitimacy of these duplicate signatures, the special interests behind this initiative attempted to run out the clock on this challenge through obstruction and delay. They were caught, and now we hope the court does the right thing and enjoin the measure from tabulation in the fall.”
As previously reported by AZ Free News, the extent of the signature duplication was extreme and brazen with 250 individuals reportedly signing five or more times, and a single individual signing no less than fifteen times. You can see the exhibit here.
In the text of Judge Skelly’s determination, hundreds of the alleged duplicates were overruled and removed from consideration and 3,333 were removed from consideration by agreement of attorneys on both sides. While the signatures were classed into “exact matches” and “near matches,” Skelly writes that he was instructed to “not read anything into those descriptions and I did not.”
Judge Skelly found that “Plaintiffs had proved by clear and convincing evidence that 37,657 signatures were duplicates— that the same person had signed more than once.”
SHARE: The group that supposedly wants to “make elections fair” (including Adrian Fontes) is content to do so by counting duplicate signatures. 🤯https://t.co/RXH6xGdKCe
Writing about the dupicate signature issue in August, the AZFEC criticized the group behind Proposition 140, the “Make Elections Fair PAC,” stating that the group which seeks to import “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.”
“This is outrageous,” AZFEC wrote, encouraging readers to examine the evidence themselves.
“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 the same name and same address 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.”
Judge Frank Moskowitz will hold the next hearing on Prop. 140 on Wednesday.
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.
