By Howard Fischer
Mail | X: @azcapmedia

PHOENIX - Arizonans won't know for at least several days whether they are going to be able to vote to scrap partisan primaries.

In a ruling late Wednesday, the Arizona Supreme Court said Maricopa County Superior Court Judge Frank Moskowitz was wrong in refusing to consider some evidence by foes of Proposition 140 arguing that there are not enough valid signatures on petitions to put the issue on the general election ballot.

The order, signed by Chief Justice Ann Scott Timmer, directs the trial judge to examine the evidence "and determine whether the exhibits prove any duplicate signatures by clear and convincing evidence.''

"The court should then proceed accordingly,'' she wrote.

Wednesday's order could determine the fate of the measure.

That exhibit - the one the justices ordered Moskowitz to review - contends that there are about 43,000 signatures on the petitions that are duplicates.

Just days ago, the Secretary of State's Office finished its review of the approximately 575,000 signatures submitted to send the issue to the ballot. After review, including checking a random sample, it was determined that there are 409,474 valid signatures left.

But the minimum number needed for the proposed constitutional amendment is 383,923. So, if the new review disqualifies any more than 20,551 of what remains, the petition drive falls short.

Even then, however, whichever side loses is likely to take the issue back to the Supreme Court.

And there's something else.

The justices put off deciding a separate challenge to the measure, this one contending that what is in Proposition 140 violates a prohibition against asking voters to amend multiple sections of the Arizona Constitution in a single take-it-or-leave-it ballot measure.

Moskowitz, in a separate ruling, acknowledged the measure would make several changes in how elections are run. But the judge said it doesn't matter.

"The initiative's provisions are sufficiently related to a common purpose or principle,'' Moskowitz said. "That common purpose or principle and general topic is reforming candidate elections.''

So even if Moskowitz again concludes there are sufficient signatures - and even if the justices uphold that ruling - they still could kill the measure over that legal issue of creating an all-or-nothing choice for voters.

Less clear is what this means for printing the ballots.

The justices themselves have acknowledged that counties have told them they needed to send the ballots to the printer Thursday. But there may be enough flexibility in that schedule to allow an extra couple of days.

And, in a worst-case scenario, the counties could print ballots with all the yet-to-be-resolved measures on them. Then, if the justices conclude one or more of them are legally flawed, election officials would be instructed not to tally any votes for or against them.

At stake is what could be a sea change in Arizona politics.

Candidates now seek out the nomination of their own party in a primary that is open only to members of that party. Independents also can vote by choosing a party's ballot but generally do not participate.

Proponents of Prop 140 said what that means is the nominees seek to appeal only to hard-core party adherents. Then the choice in November is between those picks.

That system has even more pronounced effects in legislative and congressional districts where one party has a huge voter registration advantage over the other. It makes the nominee of the majority party the de facto winner.

Under this system, there would be a single, wide-open primary where all candidates from all parties as well as political independents run against each other. And anyone registered to vote could cast a ballot.

The argument by proponents is that all the candidates would have to appeal to all voters.

But the measure doesn't stop there.

It would defer to the Legislature to determine how many people advance to the general election. That could simply be the top two, even if both are from the same political party.

What it also would permit, however, is for lawmakers to allow up to five names to go on the ballot. And in that case, it would require a system where voters rank their choices from first to last, with possible multiple stages of eliminating the bottom vote-getter until one candidate has at least 50% of the vote.

It is putting both changes into a single ballot measure that challengers contend is illegal.

Even if the justices reject both the signature and single-issue challenges, that doesn't end the legal battles over Proposition 140.

Initiative proponents filed suit after the Legislative Council crafted a summary of the measure that mentioned the option of ranked-choice voting first, even before the mandatory open primary. Maricopa County Superior Court Judge Melissa Julian ruled that was done on purpose "to dissuade voters from supporting the initiative.''

Lawmakers who make up the Legislative Council now are asking the Supreme Court to overturn Julian's ruling.

The need for a quick decision on that question is not as acute as the deadline for printing ballots.

That summary does not go on the ballot but instead into a brochure that is supposed to contain an "impartial'' analysis of each measure up for a vote, a brochure mailed to the homes of the state's more than 4.1 million registered voters.