A proposal to create an open primary system in Arizona is legally flawed and cannot appear on the ballot, a judge ruled Monday.

Maricopa County Superior Court Judge Mark Brain said while the initiative would affect many sections of state election laws, most of it relates to the single purpose of having a single primary where all candidates from all parties would run against each other. Then the top two would face off in the general election.

But Brain said the initiative also would ban the use of public money for elections for each party to select precinct committeemen and committeewomen. He said that violates a prohibition against constitutional amendments dealing with more than one subject.

"The proposed prohibition of funding ... is entirely different,'' the judge wrote. "There is no good reason that a vote for or against that topic should be bundled with a vote on an open primary.''

Tuesday's ruling is not the last word. Former Phoenix Mayor Paul Johnson said supporters will ask the Arizona Supreme Court to rule that Brain got it wrong.

"We think we have a very good claim, a very good reason as to why that was essential,'' he said of the provision cutting public funding for those party officers. "We'll make that case to the upper court.''

But unless overturned, it means that those who want to overhaul how Arizona conducts elections will have to wait at least two years before trying again.

Proponents contend the current partisan primary system allows candidates to appeal solely to those of the same political beliefs to get nominated. They say that is a problem in legislative districts where one party dominates, effectively making the general election meaningless.

By contrast, they say, a "top two'' primary system involving all voters would force candidates for statewide, legislative and county supervisor posts to appeal to a broad spectrum from the beginning.

Legal opposition came initially from interests in the Republican Party which dominates Arizona politics. But it also drew fire from some Hispanic Democrats who were concerned that changing the system could result in election of fewer minorities.

The issue before Brain, however, was solely the question of whether the initiative impermissibly deals with multiple subjects. That is constitutionally prohibited, at least in part to prevent voters from having to support something they do not like solely to get the part of the initiative they want.

In this case, Brain said there is nothing wrong with the basis of the initiative. It essentially sets up the same kind of system that exists in electing members of school boards and most city councils, where all candidates face off in a primary.

One key difference is that candidates would still be able to list their party affiliation on the ballots. Brain said that does not matter.

Where it got complicated, the judge said, is in the election of the precinct committeemen and committeewomen who, while set up under state election laws, are party officials.

Brain said initiative organizers could simply have said that candidates for these offices will not appear on the primary ballot because there would no longer be partisan primaries.

"Instead, this provision prohibits state assistance in any form or forum and at any time,'' the judge wrote. And that, he said, is an entirely separate question from open primaries.

Johnson disagreed. He said one reason for seeking nonpartisan primaries was to halt the state subsidy of political parties in all forms, including electing the party officials.

The Latino opposition to the initiative was late in developing, with state Rep. Steve Gallardo, D-Phoenix, and Maricopa County Supervisor Mary Rose Wilcox, also a Democrat, formally joining the lawsuit as challengers last week.

Gallardo said he fears a situation where someone could "game'' the system in a Hispanic-dominated district, with a single Anglo candidate getting nominated because the votes were split among several minority candidates.

(1) comment

Richard Winger

The political scientists who have really studied polarization and partisanship all find that there is no correlation between type of primary system, and whether a legislature is polarized or partisan. Google the findings of political scientists Todd Donovan, Seth Masket, and Boris Shor. Donovan was the expert witness for the top-two Washington state law, but even he said in a scholarly article published in the Calif. Journal of Public Policy that the top-two system has not changed the Washington state legislature at all, after five years. Washington state has the 2nd most polarized legislature in the nation, according to Boris Shor.

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