By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — There’s nothing wrong or illegal with how state lawmakers chose to describe to voters a major potential change in how primary and general elections are run, the Arizona Supreme Court concluded Wednesday.

The justices rejected arguments that members of the Legislative Council acted illegally in selectively emphasizing that approval of Proposition 140 could lead to a system of “ranked choice” voting to determine the ultimate winner.

Attorneys for Make Elections Fair said the first thing the council should have listed is what would definitely happen if the measure is adopted: It would have scrapped partisan primaries in favor of what’s been called a “jungle primary” where all candidates from all parties run against each other and all voters of all political persuasion can cast a ballot.

Instead, they pointed out, the description first says it would “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.”

The problem with that, they contend, is that ranked-choice voting would only occur if the Legislature decides that more than two people should advance from the primary to the general election. And, they said, the wording also then immediately referred people to a lower paragraph for a further explanation, something they argued encouraged readers to skip over the mandatory description about changes to the primaries.

But Chief Justice Ann Scott Timmer, writing for the unanimous court, said there is nothing in the explanation that is designed to skew the views of voters against the measure. Anyway, she said, it is not up to courts to decide whether one provision is more important than another.

Timmer said the only legal issue for the court is whether “reasonable minds” could conclude that the Legislative Council met the requirements of creating an impartial ballot description, “not whether we believe the judicial system could itself devise a better analysis.”

The reason for the fight deals with the fact the descriptions crafted by the council of all ballot measures are included in a pamphlet mailed to the homes of the state’s more than 4.1 million registered voters. And what people read there ultimately could help them decide whether to vote in support or opposition, especially in a year when more high-profile issues on the ballot, from a hotly contested Senate race to a controversial measure providing a constitutional right to abortion, are likely to dominate the airwaves, both in news stories and commercials.

With bipartisan backing, the creators of Prop 140 say it is designed to scrap the current system where one party or the other holds an insurmountable voter edge in more than two-thirds of the legislative districts. That means whoever wins the primary — often someone who appeals to the more radical elements of his or her party — goes on to nearly certain victory in November.

But the proposal would affect more than legislative races. It also would cover federal and statewide offices. And it would override the current system in Tucson, the only city in the state that has partisan local elections.

More complicated is what happens after the primary, a decision that would be left to state lawmakers.

They could simply allow the top two vote-getters in each to advance to the general election. That could mean two Democrats, two Republicans, two Libertarians, two Green Party adherents, two independents — or any combination.

But Prop. 140 says lawmakers are free to allow up to five to advance to the general election. In that case, it requires use of a “ranked choice” system where people mark their first, second, third and beyond choices.

If no candidate gets at least 50% on the first round, the contender with the fewest votes is dropped from the list and there’s a new round of balloting, this time using the second choice of those who wanted the now-disqualified candidate. There could be successive tallying of ballots until someone gets 50% of the votes.

A trial judge agreed with Prop. 140 supporters that mentioning the possibility of ranked choice voting first was improper and directed the Legislative Council to recraft the explanation. Wednesday’s ruling overturns that.
Still up in the air, however, is whether voters actually will get to weigh in on the change.

Earlier this month the justices rejected arguments by foes that Prop. 140 should not be allowed on the ballot because it sought too many changes. The justices said they all are “topically related” and can be presented to voters as a single take-it-or-leave-it measure.

But the courts have yet to answer the question of whether there are sufficient valid signatures on petitions.

With the deadline for printing the ballots already past, the justices ordered election officials to print the ballots with Prop. 140 on it. But they left the door open for directing those same officials not to tally the votes for or against it if the signature count falls short.

A hearing on that issue is scheduled for next month.

Chuck Coughlin, the campaign manager for Prop. 140, said his group is “not surprised” the justices “have acted contrary to our wishes and the lower court’s ruling.”

“Any analysis should begin by explaining what the initiative does and then explain what the initiative may do,” he said. “The Legislative Council’s analysis fails that test because it begins by explaining what the Make Elections Fair act may do, require rank choice voting and fails to start with what our initiative does do: create an open primary in Arizona where all candidates and all voters are treated equally without regard to their political party affiliation.”