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AZ Supreme Court rules Top-2 primary can go to ballot

The Arizona Supreme Court ruled today that a proposed initiative to create a “top-two” primary election system in Arizona can go to the November ballot, overturning a lower court ruling that the initiative violated the state Constitution.

The Supreme Court gave no explanation for its ruling on Friday, saying only that the Open Elections/Open Government Act did not violate the separate amendment rule in the Arizona Constitution, which requires ballot initiatives to focus on a singular goal.

Read the ruling

A Maricopa County Superior Court judge earlier ruled that a provision eliminating taxpayer-funded elections for political party officers violated the rule.

The proposal would create an election system in which all candidates for an office run on the same ballot in the primary and the top two vote-getters advance to the general election, regardless of party affiliation.

Paul Johnson, chairman of the Open Government Committee that drafted the measure, called it a good day for Arizona. “We’re elated,” he said.

Johnson said the committee’s attorneys vetted every provision in the proposal against the separate-amendment rule to ensure it would pass muster with the courts. He said the committee considered what Arizona elections would look like if the rest of the initiative passed without the provision eliminating publicly funded elections for precinct committeemen.

“It would have been mayhem. They had to be connected,” said Johnson, the former mayor of Phoenix. “Candidly, I thought the precinct committee worker and how you fund the party was their weakest argument.”
Attorney Mike Liburdi, who represented the Save Our Vote committee that sued to knock the initiative off the ballot, said the Supreme Court’s ruling contradicts previous separate amendments rulings, such as a ruling 2010 ruling against a ballot measure on secret balloting for union elections and a ruling earlier this year against a ballot measure to eliminate public campaign funding in Arizona.

“I’ll wait to really see what the court’s opinion says. But my guess is they’re either going to rewrite the test or come up with some other way of applying the separate amendment rule,” said Liburdi, of the law firm Snell & Wilmer. “Those initiatives (on Clean Elections and secret ballots) were more coherent than this jumbled mess.”

Liburdi said Save Our Vote may launch other legal challenges to the Open Elections/Open Government Act, but that no decisions had been made yet.

Johnson, however, said he expects at least one more court challenge when election officials determine whether the initiative has enough signatures to reach the ballot. The measure needs 259,213 signatures to qualify for the ballot.

“My guess is, whether we do or don’t (qualify), we’re going to end up back in court one more time. But the good news is, we’re one step closer and we’re just going to keep fighting it,” Johnson said. “But for today we’re just going to bask in the sunlight a little bit.”

The initiative may have survived its court challenge, but it might not have the signatures to qualify for the ballot. Early analyses from county elections officials indicate that the validity rate for the 358,629 signatures submitted by the Open Government Committee is on a razor-thin margin.

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