Judge blocks top-two initiative from ballot

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A Maricopa County Superior Court judge issued an injunction against the Open Elections/Open Government Act today, ruling that a provision on the election of political parties’ officers violates a rule requiring ballot initiatives to focus on a single subject.

Judge Mark Brain ruled that the section on the rights of political parties should have been a separate amendment from the initiative, which aims to create a “top two” primary election system in Arizona. The provision on the rights of political parties states that the initiative does restrict the rights of individuals to associate with political parties, and that parties may still elect party officers, support candidates or otherwise participate in elections, but that “no such procedures shall be paid for or subsidized using public funds.” The provision would have eliminated taxpayer-funded elections for precinct committeemen.

Read the ruling

Paul Johnson, chairman of the Open Government Committee, said the group will appeal the ruling to the Arizona Supreme Court. He said the appeal will likely be filed on Tuesday.

Brain said there is no good reason why a prohibition on public funding for party activities should be included in the initiative. He disagreed with the Open Government Committee’s argument that the only change created by the provision is that the publicly funded system used to select party officers in the past would no longer be usable because it would not exist anymore.

“It would be one thing if the initiative provided that candidates for such offices will no longer appear on the non-partisan primary ballot – such a provision would directly relate to how the primary election would work. Instead, this provision prohibits state assistance in any form or forum and at any time,” Brain wrote.

Attorney Mike Liburdi, who is representing the Save Our Vote committee that sued to block the initiative, praised the ruling. He said defunding precinct committeeman elections had nothing to do with creating a top-two primary system.

“This committee put in a provision that has nothing to do with the substance of what they’re trying to achieve, and from all indications they did it in a manner to use it as a sound bite in their political campaign,” Liburdi said.

Under the current election system, voters who are registered with a political party vote on precinct committeemen on their primary ballots. Registered independents do not get to vote for the positions in the primary, regardless of which party’s ballot they choose.

But Johnson said the precinct committeeman issue was intricately tied to the top-two primary proposal. If the precinct committeeman elections are changed under a top-two system, he said, election officials will have to print two separate ballots so people can vote for the party officers.

Johnson, who said he expected the initiative to ultimately end up before the Arizona Supreme Court, is optimistic about the committee’s chances. Despite the Save Our Vote committee’s many arguments on why it believed the initiative violated the separate amendment rule, he noted that Brain agreed with it on only one count.

“They threw a lot of mud at the wall. A lot. They talked about the evils of the open primary. They talked about a variety of different issues. The judge dismissed all of them, except for one narrow exception. That one narrow exception was, ‘should you subsidize the election of party officers?’” Johnson said. “You can’t put it on the same ballot. You have to do two primaries – the open primary and a partisan primary.”

In their lawsuit, opponents of the Open Elections/Open Government Act argued that the initiative violated the separate amendment rule because it changed dozens of election-related statutes. Brain, however, said the provision on the rights of political parties was the only section that was not consistent with the initiative’s goal of creating a top-two primary system.

The Open Government Committee spent nearly $1 million to collect 364,486 signatures for the proposed constitutional amendment. County election officials had not yet verified the signatures, but with only 259,213 needed to qualify, it appeared to be well on its way to qualifying for the November ballot. Johnson, the former Phoenix mayor, said the committee was prepared to raise and spend $2 million on the campaign.

The proposed initiative would have scrapped Arizona’s partisan primary election system and replaced it with one in which all candidates  appear on the same ballot and the top two vote-getters advance to the general election regardless of political party. Supporters say the system minimizes the more extreme elements of both parties, elects more moderate candidates who are more representative of the electorate, loosens the control of political parties on the election process and increased voter turnout.

California, Louisiana and Washington use similar election systems.