A new report concluded that Proposition 140 — which seeks to establish ranked-choice voting and replace Arizona’s partisan primaries with open primaries — would empower the secretary of state more than voters in elections.
The Reason Foundation issued the report last week by its director of criminal justice policy, Vittorio Nastasi, several days after early voting began. (Uniformed and Overseas Citizens Absentee Voting Act voters (UOCAVA) were mailed their ballots near the end of September).
“Prop. 140 grants far too much power to the legislature or secretary of state by allowing them to determine how many candidates can compete in general elections,” said the organization. “The impact of Prop. 140 is, therefore, uncertain and could generate substantial conflict without any clear benefit.”
Arizona’s current primary elections restrict voters to voting within the primary election of their registered party; unaffiliated voters may change their registration leading up to the primaries in order to cast a ballot for their preferred primary election.
Ranked-choice voting would do away with majority vote winners in general elections with more than two candidates in most races (and more than four candidates in Arizona House races). Instead, victors would be determined by voter rankings of preferred candidates. Without any majority winner, the ranking system determines the winner(s) by eliminating the lowest vote-getter and redistributing those votes to the other candidates based on those voters’ rankings.
The report noted that Prop 140 doesn’t specify the number of candidates that would move on to the general election from the proposed open primaries, allowing either lawmakers to decide by November 1 (or the secretary of state thereafter) how many candidates move on to the general election.
The Reason Foundation’s report assessed that open primaries would violate the First Amendment.
“Political parties are fundamentally private organizations with the right to set their own rules for nominating candidates,” said the organization. “To infringe on that right is to violate the freedom of association. No matter how large or powerful the two major parties may be, the government has no role in determining the process for their primary elections.”
The organization proposed that there were “better alternatives” to meet the problem of the exclusion of nonpartisan voters: allowing minor party candidates to participate in debates and redrawing gerrymandered districts.
The Reason Foundation did side with ranked-choice voting, however. The organization said that the proposed voting method would remedy voter concerns of “wasted votes and spoiler effects” while improving opportunity for minor party candidates.
The Arizona Joint Legislative Budget Committee also issued an official fiscal impact analysis for Prop 140. The committee concluded that the proposition’s overall fiscal impact couldn’t be determined in advance due to necessary further action by state and local governments. In their review of the fiscal impact analysis, the Reason Foundation emphasized that administering elections would likely become more costly under Prop 140 by increasing the number of candidates on the general election ballot, changing the length of both sample and election ballots, and increasing the number of voters receiving a primary ballot.
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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?
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…
Arizona will be at the forefront of the presidential campaign come the 2024 general election, but there’s one contest that might take on more importance.
On Monday, Save Democracy Inc., an Arizona-based 501(c)(3) nonprofit educational organization, gave a preview of an election-oriented voter initiative that could be coming the state’s way in November 2024. They tweeted, “Coming Soon: A statewide initiative campaign aiming to outlaw partisan primaries.”
Coming Soon: A statewide initiative campaign aiming to outlaw partisan primaries ✅Prohibits the use of taxpayer funds to pay for private political party primaries ✅ALL candidates appear on the same🗳️& compete under the same rules ✅ALL registered voters use the same🗳️to vote… pic.twitter.com/z1lzZSolS5
The post shared that this initiative would prohibit “the use of taxpayer funds to pay for private political party primaries; that all candidates (would) appear on the same ballot and compete under the same rules; and that all registered voters (would) use the same ballot to vote.”
Save Democracy Arizona’s website asks and answers the question, “Why do we need reform?” by alleging that “the current system is not working,” that “we need an even playing field,” and that “Arizona has a tradition of open elections.” On their home page, they write, “At a time when many Americans are concerned about the health of our election system, our coalition was formed to educate voters about how Arizona’s voting system currently operates. Join us as we explore alternative primary structures that could make our system work better for ALL Arizonans.”
The group’s efforts have already caught the eye of longtime Arizona Republic columnist Laurie Roberts, who wrote a piece about the likely potential for action on this front. She tweeted, “Coming soon to a neighborhood near you: A statewide initiative campaign aiming to outlaw partisan primaries. Makes total sense here, in the state where independents now outnumber Republicans and Democrats.”
Coming soon to a neighborhood near you: A statewide initiative campaign aiming to outlaw partisan primaries. Makes total sense here, in the state where independents now outnumber Republicans and Democrats. https://t.co/SMU09Einsb via @azcentral
In her column, Roberts elaborated on what voters might see over the coming year, opining, “(This group) has scrapped plans for an initiative to bring ranked-choice voting to Arizona. Instead, it is preparing an initiative asking voters to outlaw taxpayer-financed partisan primary elections. The Legislature and Gov. Katie Hobbs would be directed to develop a new system that puts all candidates on one primary-election ballot. With one set of rules to get there.”
The Roberts’ piece grabbed the attention of Representative Austin Smith, who has been fighting against Ranked Choice Voting since the day he entered the Arizona Legislature – and may be one of the significant reasons why there may not be a direct attempt to bring Ranked Choice Voting to Arizona via a November 2024 ballot initiative.
Smith tweeted, “Two competing initiatives!? Fun! I look forward to helping Arizonans pass HCR 2033 protecting Arizona’s primary election system and keeping the entrenched consultant class out of picking our representatives. Looks like the Arizona Freedom Caucus is effective yet again like Laurie Roberts said.”
Two competing initiatives!? Fun! I look forward to helping Arizonans pass HCR2033 protecting Arizona’s primary election system and keeping the entrenched consultant class out of picking our representatives.
The freshman legislator sponsored HCR 2033, which sent a question to voters on an amendment to the state constitution to “determine that a Legislature-enacted direct primary law supersedes any contrary or inconsistent provision of any charter, law, ordinance, rule, resolution or policy of any city and modifies nominee requirements for a direct primary election.”
The vote in the Senate was split down party lines – 16-13, with one Democrat (Senator Miranda) not voting. Earlier in the session, the Arizona House passed the resolution – also along party lines – 31-28, with one Democrat (Representative Shah) not voting. The legislature then transmitted the resolution to the Arizona Secretary of State.
After the Senate passed the resolution, Smith wrote, “This constitutional referral to protect our party primaries and girding us against radical experimental election systems that disenfranchise voters such as ‘ranked choice voting.’”
Daniel Stefanski is a reporter for AZ Free News. You can send him news tips using this link.
