PHOENIX — Backers of creating open primaries in Arizona are suing state lawmakers, saying they approved a misleading description of the effects of the measure if approved.
The lawsuit filed Wednesday in Maricopa County Superior Court asks a judge to order members of the Legislative Council to reword the summary that will be sent to voters throughout the state.
Attorney Mary O’Grady, representing Make Elections Fair, said allowing the current description to go out to the more than 4 million registered voters may result in people being improperly persuaded to vote against the measure.
But much of the legal complaint is about not the words lawmakers used — though O’Grady has one specific objection — but instead the order in which the Legislative Council put the provisions.
The initiative, if approved in November, would eliminate the current system of partisan primaries.
Instead, all candidates from all parties — or no party at all — would run against each other for the nomination. All registered voters could cast a ballot regardless of party affiliation.
It would be up to the Legislature to determine how many advance to the general election or, if lawmakers do not act, to the secretary of state.
If the decision is just two, that makes it simple.
But lawmakers or the secretary could allow up to five. In that case, there would be a system of ranked-choice voting to determine who is the winner.
The problem with the description, O’Grady said, is it lists the mere possibility of ranked-choice voting first, before any of the other provisions. That, she said, fails the legal test that requires the Legislative Council to prepare “impartial” descriptions.
“By beginning with the changes the initiative permits regarding the use of voter rankings, the adopted analysis improperly amplified those permitted changes and improperly understates the initiative’s required (ROMAN) changes to primary-election procedures,” O’Grady said.
All that, she said, ignores that the initiative’s primary focus is on creating an open primary.
O’Grady also pointed out there is no actual mandate to use ranked-choice voting. That is a system where voters rank the choices on a ballot based on their preference, one through possibly as many as five.
If the candidate ranked first gets at least half of the votes cast, that ends it. But if not, the candidate with the least amount of support then is eliminated, the second-choice pick of those who voted for that person are then redistributed, and the process continues until some candidate wins at least half of the vote.
She said, though, lawmakers are free to decide not to use that system and instead simply have the top-two vote-getters in the primary — regardless of party — advance to the general election. If the Legislature does not act one way or the other, the decision defaults to Secretary of State Adrian Fontes.
O’Grady said representatives of the Make Elections Fair Committee asked members of the Legislative Council to make requested changes in the description. They did not, with what she said is the legally improper language getting unanimous approval.
Sarah Smallhouse, who chairs the Make Elections Fair Committee, said the fact both Republicans and Democrats on the council approved the verbiage does not mean it is fair.
“As the beneficiaries of the current electoral process we are proposing to change, the council (members) each have an inherent conflict of interest,” she said in a prepared statement.
Still, the lawsuit does not challenge the legal right of the council to craft the summary.
The change, if approved by voters, has the potential to reshape Arizona politics, particularly at the legislative and congressional level.
A majority of district lines are crafted so one party or the other has a nearly overwhelming majority of registered voters.
That means elections effectively are decided at the partisan primary level largely by those who are adherents to that party’s principles and goals. And that means no real choice for members of other parties by the time the general election comes around.
In fact, some districts are so lopsided that the minority party doesn’t even offer up candidates.
A wide-open primary would require all candidates to compete for voters. It could conceivably mean the ones who advance to the general election might be from only one party. But it also means that members of other parties or no party at all will have had a voice in narrowing the list of who is on the November ballot.
It also means more participation for nonpartisan candidates.
Former Phoenix Mayor Paul Johnson, co-chair of the Make Elections Fair Committee, said independents hoping for a slot on the general election ballot have to submit six times as many signatures as partisan candidates running in the primary. Yet independent voters make up nearly 34% of the total registered voters.
State lawmakers are trying to short-circuit the initiative through their own ballot measure.
It would put a provision in the Arizona Constitution to ensure each recognized party got to place its own nominee on the general election ballot. And, as a constitutional amendment, if it is approved in November it would trump the statutory changes sought by Make Elections Fair.
No date has been set for a hearing.
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