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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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
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.
