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The challengers to the Make Elections Fair Act say that the Arizona Secretary of State’s arguments that the voters, not the courts, should decide the fate of the proposed constitutional amendment should be stricken from the court record.
Daniel Arellano, an attorney representing the challengers, also claimed that Secretary of State Adrian Fontes had recently made a contradicting argument in a similar case.
The Make Elections Fair Act is the target of a legal challenge in which detractors allege that the committee behind the ballot measure did not collect enough signatures to make it onto the November ballot.
Ballots have already been sent to the printers, so the measure will be put to voters no matter what, but if the courts ultimately determine that too many of the signatures were duplicates, the state Supreme Court has said it will order elections officials to disregard any of the votes for Proposition 140, as it will appear on the ballot.
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If voters favor it, the Make Elections Fair Act would amend the Arizona Constitution to create an open primary system where all candidates for federal, state and local offices would face off in a single primary election instead of segregated partisan elections. Those primaries would also include candidates who are politically unaffiliated.
Fontes, a Democrat, argued in a filing to the Arizona Supreme Court last week that allowing voters to mark their choice on the Make Elections Fair Act, and then possibly disregarding those votes, would disenfranchise voters.
Earlier, a trial court had said it would not consider the challengers’ evidence that they said prove some 40,000 signatures were actually duplicates, making them invalid. That judge ruled Prop. 140 had about 32,000 petition signatures more than needed.
But the Arizona Supreme Court ordered the trial judge to reopen the case and consider the evidence. Fontes on Friday asked the high court to reconsider that decision, citing decades of precedent and the court’s own rules that run contrary to what the court did when it allowed the lawsuit to continue after ballots have been printed.
Arellano alleged that Fontes was not given permission by the court to make the request to reconsider, and also pointed out that Fontes had argued the opposite point in a court case challenging the candidacy of Republican legislative candidate Michael Way, whose name has also already been printed on November ballots.
In a brief filed in the Way case, Fontes told the court that, if it determined that Way was not eligible for office, the court should order that votes for the candidate should not count, Arellano wrote.
“The Court should take judicial notice that the Secretary has made a contradictory argument in the ongoing (Way case), saying the Secretary should be ordered to disregard votes cast for an allegedly ineligible candidate,” Arellano wrote.
JP Martin, spokesperson for Fontes, told the Arizona Mirror that the Secretary of State filed his request for reconsideration in compliance with the Arizona Supreme Court’s order allowing responses.
“Also, motions to strike are generally disfavored by courts,” Martin wrote in an email.
When it comes to the accusation of double standards, Martin pointed out that there is a state statute that specifically addresses what to do if a candidate is removed from a race involuntarily after ballots have already been printed.
In that case, courts would order the counties not to certify the votes for that candidate, and to instead allow a write-in candidate to file a nomination paper to run for the seat, Martin said.
“There is no statute even remotely similar in the initiative context; once the initiative is on the ballot and the ballots go to print, 80 years of precedent has held that the challenge to the initiative is moot,” Martin wrote.
The Way case, in which he was accused of not being an Arizona resident for long enough to qualify for legislative office, was dismissed on Monday .
The challengers accused the Make Elections Fair Act Committee of stalling the case until the ballot printing deadline had passed.
“It is clear that they expected the ballot printing deadline as a get-out-jail-free card,” Arellano wrote. “Allowing ballot printing to function as such would cement the perverse incentive the Committee thought it could avail itself of here: delay and fight overwhelming evidence of invalidity in the hopes of running out the clock.”
Arellano countered arguments from both Fontes and the committee that a ruling not to count votes for the act would disenfranchise voters.
“Voters are not disfranchised by not having their votes counted for a measure that was never eligible in the first place,” he wrote. “By the Committee’s logic, holding ballot measures to be substantively invalid after their adoption — something the courts unquestionably have the power to do — would likewise disenfranchise voters.”
***UPDATE: This story has been updated with comments from a spokesperson for the Arizona Secretary of State.
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