Maricopa County Recorder Stephen Richer and State Senator Ken Bennett filed amicus briefs in defense of a Ranked Choice Voting (RCV) ballot initiative with the Arizona Supreme Court last week.
Bennett served as the secretary of state from 2009 to 2015. He filed his brief jointly with Helen Purcell, the former Maricopa County recorder who served nearly 30 years.
Richer said in his filing for Smith v. Fontes that the votes should be counted for RCV, or Prop 140, the “Make Elections Fair Act” — regardless of the existence of a disqualifying number of duplicate signatures gathered — because the “election has already begun” and, he says, state law prohibits the prevention of counting votes cast.
“Hiding the results or attempting to prevent the vote from being tabulated is an inequitable result,” said Richer. “And it is at odds with Arizona public policy that demands government transparency. Not counting the vote does not mean it did not happen.”
Richer said all arguments concerning the initiative’s qualifications to be on the ballot were rendered moot after the deadline passed to certify and print the ballots.
“To be resolved with a high degree of certainty may not be currently possible given the election time constraints,” said Richer. “The issue has now, at least partially, gone to the people. The Recorder believes there is benefit to allowing the vote to occur, and assuming it is otherwise constitutional, to count.”
Richer stated that his office had already printed over 21,500 different ballot styles and mailed many of them out to in-state residents as well as military and overseas voters, some of which have been returned: over 1,100 out of about 8,500.
“Recorder submits that once the ballots are printed, the time for signature challenges must end,” said Richer.
Richer also said that state law prohibits the destruction of any public record of a vote, and that Maricopa County’s tabulation machines would tabulate the votes returned.
The recorder noted that state law does allow for courts to enjoin the certification and printing of ballots, but not the power to enjoin the counting of votes.
“[I]f the voting tally is a public record, the Recorder does not see how Maricopa County can either destroy it or fail to release it,” said Richer.
Similarly, Bennett and Purcell argued that their combined expertise on elections made it clear that timeliness in elections takes precedence over validity.
Bennett and Purcell cited court precedent in their argument of mootness regarding the challenge to Prop 140’s validity. Secretary of State Adrian Fontes instructed county election officials to include Prop 140 on their ballots printed in late August.
“Courts have consistently upheld the principle that pre-election challenges must be resolved before the ballot printing deadline,” said the pair. “[And] as a practical matter, invalidating Prop 140 after voting has already begun would result in electoral chaos and damage voter confidence in the efficacy of their votes.”
That ballot printing deadline occurred a day after the Arizona Supreme Court remanded the case to the Maricopa County Superior Court for review, citing the exclusion of evidence pertaining to 40,000 duplicate signatures. The exclusion of those contested signatures reduce petition signatures to what is below the total required to qualify for the ballot.
Though the Maricopa County Superior Court did find that nearly all of the 40,000 signatures were duplicates, the court ruled that the state constitution didn’t allow for those votes cast on Prop 140 to be ignored. That ruling led to the appeal which the Arizona Supreme Court now considers, and with which Richer and Bennett disagree.
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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.
Secretary of State Adrian Fontes argued in a new brief for an ongoing court case that duplicate signatures shouldn’t be cause for Proposition 140 to be removed from the ballot. Challengers to the proposition say they found around 40,000 duplicate signatures.
Prop 140, the Make Elections Fair Act, proposes open primaries (called “jungle” primaries by opponents) which remove the partisan segregation defining Arizona elections, as well as the implementation of ranked-choice voting.
Fontes is one of the listed “team members” for Save Democracy, the nonprofit entity supporting the political action committee pushing the measure, Make Elections Fair Arizona.
Save Democracy’s president, Sarah Smallhouse, also serves as treasurer of the Make Elections Fair Committee. Fontes also conducted a webinar sponsored by Save Democracy in which he advocated for open primaries.
In the brief issued on Friday for the case Smith v. Fontes, Fontes argued that the proposition should be considered valid since the ballots had already gone to print with the contested proposition included. Otherwise, the secretary argued, the court would be denying Arizonans their right to “free and equal” elections.
“Once the ballots have gone to print, it is in the hands of Arizona’s voters,” said Fontes. “The person contesting an issue (or candidate) can make a case to the voters, but the Courts cannot usurp the voters’ decision once it goes to them.”
Fontes proposed that those challengers to the validity of Prop 140’s gathered signatures should seek recourse through future elections.
“After investing their time educating themselves about this ballot measure, it would be wrong for the Arizona electorate later to be told their vote will not be counted,” said Fontes. “Given the far-reaching implications of this Court potentially enjoining the canvass, the Secretary requests this Court to reconsider its previous ruling and affirm the principle that once the ballots have gone to print, any challenge must end.”
The Arizona Free Enterprise Club (AFEC) sued to stop the Make Elections Fair Act after reportedly discovering over half of the proposition’s gathered signatures were gathered in violation of state law.
🚨 Second lawsuit filed!!
If the unconstitutionality of the the radical Make Elections Fair Initiative wasn’t bad enough, it turns out after a thorough review of their petitions, that over half of their signatures have been collected in violation of state law! https://t.co/mUMNXsOub7pic.twitter.com/ztrwbIIFaw
— Arizona Free Enterprise Club (@azfec) July 27, 2024
The Arizona Supreme Court sided with AFEC’s challenge last month, ruling that the lawsuit should continue in order to determine whether the tens of thousands of challenged signatures were valid (around 40,000), even though ballots began to be printed on the same day it handed down its decision.
The state supreme court ordered that an injunction be issued preventing the counting of any votes on the proposition should it be discovered that the proposition lack the required number of signatures.
AFEC reported discovering that, of the 40,000 duplicates, around 250 individuals had signed their name five or more times. One individual reportedly signed 15 times.
AFEC has argued that the mass amount of duplicate signatures indicated that Fontes shouldn’t have approved the proposition for inclusion on the ballot in the first place.
With 40,000 duplicate signatures, it's clear that #Prop140 should’ve never been on the ballot in the first place because the people of Arizona don’t want to follow in California’s footsteps with jungle primaries or ranked choice voting.https://t.co/RXH6xGdcMG
