Proponents of open primaries ballot measure sue over ‘misleading’ description of it

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The group behind a ballot measure that would overhaul Arizona’s election laws is suing lawmakers for approving a description of the measure that the group says only serves to mislead and confuse voters.

Sarah Smallhouse, chairman of the Make Elections Fair Arizona Act campaign, said that lawmakers refused to make the changes to the description requested by her campaign because it would benefit them to preserve the status quo.

“It’s unsurprising that none of the 14 legislators on the Council agreed to adopt our proposed changes to clarify their analysis and describe the most important elements of the initiative first,” she said, in an emailed statement announcing the lawsuit’s filing in Maricopa County Superior Court on Wednesday. “As the beneficiaries of the current electoral process we are proposing to change, the Council each have an inherent conflict of interest.”

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Earlier this month the Make Elections Fair Arizona Act turned in hundreds of thousands more signatures than necessary to qualify for the November ballot, and while the verification process is not yet complete, the initiative is widely expected to go before voters in the fall. If it passes, partisan primaries would be eliminated, with every candidate eligible for an office, regardless of their political affiliation, placed on the same ballot. And all voters, whether or not they belong to the same party, would be able to choose their favorites without the need for separate ballots. Races once regarded as safe bets for either political party would likely see new competition and upended expectations.

But before Arizonans get a chance to consider the act in November, election officials must first send out voter information pamphlets. State lawmakers are in charge of crafting and approving the descriptions of each ballot proposal included in that pamphlet. And backers of the Make Elections Fair Act say that lawmakers violated Arizona law by greenlighting a summary of the act that could turn voters away.

On July 8, a legislative panel made up of eight Republicans and six Democrats OK’d a summary of the Make Elections Fair Arizona Act that, in its first paragraph, highlighted its use of ranked choice voting.

The proposition “would amend the Arizona Constitution to: 1. Allow for the use of voter rankings at all elections held in this state to determine which candidate received the highest number of legal votes,” reads the description written by the legislative council and approved by lawmakers.

Ranked choice voting is a system under which voters number their preferred candidates from most to least favorite. The candidate who wins the majority of the vote wins the election. But if no one candidate is the clear winner, then the one with the least amount of votes is dropped and the second choices of the losing candidate’s supporters are tallied in a process of elimination until a winner is determined.

The campaign behind the Make Elections Fair Arizona Act originally sought to enshrine RCV in the state constitution , but it was later refocused after a voter survey from Arizona State University found overwhelming support for amending primary elections and limited approval for ranked choice voting. The initiative still allows for RCV in Arizona’s general elections, but it doesn’t require its use, and it leaves it up to the state legislature and the governor to decide whether to adopt the system and to what degree.

Under the act’s guidelines, if an office can only be held by one person, as in the case of the governor or the state attorney general, a minimum of two candidates and a maximum of five should be allowed to advance to the general election. For offices in which voters select more than one candidate, such as for the Arizona House of Representatives —where two candidates represent each district — between four and seven candidates should move forward from the primary to the general election.

Lawmakers and the governor are given the final say in how many candidates are considered by voters in the general election. Rather than requiring a number of candidates that would mandate the use of RCV in the general election, the act instead offers state leaders the opportunity to expand the candidate roster.

Attorneys for the campaign behind the Make Elections Fair Act argue that starting its description by asserting that it allows RCV in every election in the state is misleading, and hides the initiative’s purpose, which is to open up primary elections.

“By beginning with the changes the Initiative permits regarding the use of voter rankings, the adopted analysis improperly amplifies those permitted changes and improperly understates the Initiative’s required changes to the primary-election procedures,” reads the brief.

And, attorneys added, the courts have long held that the order of appearance of candidates on a ballot matters, because the names that appear at the top have the most advantage. The court should apply the same principle in this case, they argued, and recognize that the choice to reference RCV first was misleading and it will give voters an erroneous impression of the act.

“The same primacy effect would obtain here, where the item at the top of Legislative Council’s ballot analysis — voter rankings — would attract voters’ attention to the exclusion of items lower on the list,” reads the lawsuit. “The adopted analysis thus will tend to mislead voters into believing that the Initiative’s primary focus is on voter rankings, when it is not.”

Attorneys also pointed out that GOP lawmakers referred their own proposal to the November ballot prohibiting the use of RCV that serves as a direct competitor. In the end, attorneys wrote, approving a summary of the act that mischaracterizes its purpose violates state law. Arizona law mandates that lawmakers put together “impartial” summaries of ballot proposals. And the courts have further clarified that inflammatory language or descriptions that appear to advocate against a ballot proposal are unlawful.

“The decision to amplify voter rankings over the mandated changes to primary elections has no rational basis, and Legislative Council offered none,” attorneys wrote. “This choice resulted in a biased analysis that buries the primary-election reforms the Initiative requires.”

But Senate President Warren Petersen, a Gilbert Republican, rebutted that the description was the result of a non-partisan process.

“It was drafted by the non-partisan and unbiased Legislative Council,” he said, in an emailed statement.

The Legislative Council is chaired by Republican Speaker of the House Ben Toma, and its panel is made up of both Republican and Democratic lawmakers. Council staff members provide non-partisan bill drafting and research , but the final versions of bills and legislation are decided by lawmakers on the panel, which is majority Republican.

The lawsuit asks the court to block the description from ever making it into the publicity pamphlet sent to voters and order that lawmakers reconvene to approve a more impartial summary. Attorneys for the campaign also request the reimbursement of legal fees if the court finds in their favor.

The challenge against the Make Elections Fair Arizona Act’s description in the voter information pamphlet isn’t the only lawsuit lawmakers are facing. Last week, backers of the Arizona for Abortion Access Act took GOP legislative leaders to court over an unlawfully partisan description of the abortion rights ballot measure . Republican lawmakers included the phrase “unborn human being” in the act’s summary, and critics argued doing so introduced partisan interests, in clear violation of the “impartiality” standard set in state law.

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