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Save Our Vote v. Bennett - 1/7/2013

Arizona Supreme Court Holds That Prop 121, the “Top Two” Primary Initiative, Did Not Violate the Separate Amendment Rule.

Proposition 121, a 2012 voter initiative, asked voters to amend the constitution to alter the way Arizona administers primary elections.  The Arizona Constitution requires that when more than one amendment is on the ballot, “voters must be allowed to vote for or against each one separately.”  Various groups and electors challenged Prop 121 as a violation of this so-called “separate amendment rule.”  The superior court judge agreed, finding that Prop 121 should be struck from the ballot.  The Supreme Court reversed in August 2012.  The Proposition stayed on the ballot and failed to pass.  The Court’s written opinion followed.

Since statehood, the primary election system has been roughly the same: a “recognized” party must “nominate its candidates through the primary election.”  A.R.S. §§ 16-301, -801, -804.  Although publicly funded, primary elections are partisan in nature.  To vote on a particular party’s primary, a voter must either be registered for that party or not be registered for a recognized party.  A.R.S. § 16-467.  The winner of a primary election then appears on the general election ballot.  A.R.S. § 16-501.

State laws have also long required recognized parties to elect “precinct committeemen” at primary elections.  Committeemen select their party’s state leadership, are in charge of replacing candidates when necessary, and appoint candidates to serve as presidential electors, among other things. 

Proposition 121 would have substantially changed the primary system, primarily by implementing an “Open ‘Top Two’” primary election.  Under Proposition 121, all candidates would appear on the same ballot and voters could vote for any candidate – not just candidates of the same party.  The two candidates receiving the most votes – the “Top Two” – would “face each other in the general election,” regardless of their party alliance. 

In addition to setting up the new primary system, the proposed amendments would have “declare[d] that all qualified voters and candidates shall be treated equally by laws governing elections regardless of party affiliation.”  In addition, the amendment would have included a provision “addressing the rights of political parties,” including that nothing in Prop 121 “shall restrict the right” to create political parties, or restrict a party’s ability to “support or oppose candidates.”  This section further stated that “Political parties may establish such procedures as they see fit to elect party officers, endorse or support candidates, or otherwise participate in all elections,” but public money would not be used to pay for party procedures.

Opponents of the measure argued that Proposition 121 violated the separate amendment rule, which states that when there is “more than one proposed amendment . . . such amendments shall be submitted in such manner that the electors may vote for or against such proposed amendments separately.”  Ariz. Const. art. 21, § 1.  A proposed amendment satisfies the rule if its different provisions “are sufficiently related to a common purpose or principle that the proposal can be said to constitute a consistent and workable whole on the general topic embraced, that, logically speaking, . . . should stand or fall as a whole.”  McLaughlin v. Bennett, 225 Ariz. 351, 354 (2010).  To apply this test, the Court asks whether the provisions are (1) topically related and (2) sufficiently interrelated so as to form a consistent and workable proposition.” 

The Court held that the provisions in Prop 121 were “topically related” because they collectively “concern whether political parties and their candidates should be afforded favored treatment – through taxpayer-funded partisan primaries, the provisions of laws or regulations, or public funding – with regard to Arizona elections.”  The different provisions were “particular application[s] of the more general principle that the state should not favor political parties or party-affiliated voters in election-related matters.”

The Court likewise held that the provisions were “sufficiently interrelated.”  First, the Court explained that the provisions are both facially and logically related.  For example, the removal of public funding for party procedures goes hand-in-hand with the provision undoing partisan primary elections; in effect, both provisions would eliminate the use of public funds to support the ability of a party to nominate or support a candidate.  The Court also pointed to other features of Prop 121, including that Prop 121 would have made changes solely to Article 7, Section 10 and that, historically, primary elections and certain internal party procedures have always been treated as “one subject.”

Opponents also argued that Prop 121 was invalid because the petition signature sheets used for the measure were improper under A.R.S. § 19-102(A).  That section regulates petition sheets by, among other things, requiring that the sheets contain a “description of no more than one hundred words of the principal provisions of the proposed measure or constitutional amendment.”  In addition, the sheets must include a “Notice” explaining that the 100-word description is “only a description . . . prepared by the sponsor of the measure,” and that it “may not include every provision contained in the measure.”  Opponents contended that Prop 121’s description violated the statute because it omitted certain aspects of Prop 121, “contain[ed] misleading statements,” and “contain[ed] impermissible argument and advocacy.”

The Court rejected each of these arguments, holding that the petition sheets were in “substantial compliance” with the law.  Descriptive information will only invalidate petition signatures if the description is “fraudulent or creates a significant danger of confusion or unfairness.”  Although the description omitted some aspects of Prop 121, the omissions were not “fraudulent or misleading,” especially in light of the included Notice and because the statute requires a description of the “principal provisions, not a complete description.” 

Vice Chief Justice Bales authored the unanimous opinion.

Posted by:Joseph Roth


Posted On: 1/22/2013