Open Primary Proposition Upheld by Arizona Supreme Court
Proposition 121 would have amended the Arizona Constitution to replace publicly funded, partisan primary elections1 with privately funded, open primary elections in which all candidates would appear on the one primary ballot and the two candidates receiving the most votes on that ballot would advance to the general election, irrespective of political party. In Save Our Vote, Opposing C-03-2012 v. Bennett, No CV-12-0272-AP/EL, 2013 WL 57692 (Ariz. 2013), Plaintiffs political organizations and Arizona electors sought to enjoin the Secretary of State from placing Proposition 121 on the November 2012 general election ballot. They argued that Proposition 121 violated the separate amendment rule of Article 21, Section 1 of the Arizona Constitution2 in that it did not permit electors to vote separately on Proposition 121’s two alleged constitutional amendments: (1) the shift from a closed to an open primary election; and (2) the prohibition of public funding for primary elections.3 The Arizona Supreme Court was also called on to determine whether the petition signature sheets for the measure violated Ariz. Rev. Stat. Section 19-102(A), which requires, inter alia, petition signature sheets to include a description of the principle provisions of constitutional amendments.
Arizona courts consider a proposed constitutional amendment containing multiple provisions to be one single amendment when the provisions of that “amendment are sufficiently related to a common purpose or principle [such] 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.” Id. ¶ 12 (internal quotations omitted). In considering the relationship between a proposition’s provisions, courts examine whether the provisions are (1) “topically related,” and (2) logically interrelated “so as to form a consistent and workable proposition.” Id. (emphasis removed).
The Court found that Proposition 121’s provisions were topically related, because they all concerned whether “political parties and their candidates should be afforded favored treatment” in Arizona elections. Id. ¶ 13. The provisions’ topical relationship was not undermined by the fact that the Proposition’s stated primary purpose was to replace the existing system of taxpayer-funded primary elections with a top two, non-partisan primary system.
The Court next considered whether the Proposition’s provisions were logically interrelated. A logical interrelationship “does not require that all components of a provision be logically dependent on one another.” Id. ¶ 14. Arizona courts assess the following non-exclusive factors: whether the provisions are facially related; whether all the matters addressed by a proposition concern a single section of the Constitution; whether the legislature or voters have historically treated the matters addressed by a proposition as one subject, and whether the provisions are similar in effect. Id. ¶ 15.
Stepping through these factors, the Court found the Proposition’s broad prohibition on public funding of party activities to have logically embraced the elimination of partisan primaries. If public monies cannot be used to support a party’s endorsement of candidates or participation in elections generally, then such funds cannot be used to pay for partisan primaries used to identify a party’s official candidate for the general election. All of the Proposition’s provisions concerned Article 7, Section 10 of the Arizona Constitution. Moreover, the legislature has historically addressed the matters treated by the Proposition as one subject. Finally, the Court determined that the Proposition’s provisions replacing the partisan primary system with an open primary system were qualitatively similar in their effect to the provisions requiring a level playing field irrespective of party and prohibiting public funding for certain party activities.
The Court thus found that the provisions contained in Proposition 121 shared topicality and interrelatedness such that they were “sufficiently related to a common purpose or principle.” Id. ¶ 22 (quoting Ariz. Together v. Brewer, 214 Ariz. 118, 177 (2007)) The Proposition was therefore found to not have violated the separate amendment rule. Id. ¶ 22. In so concluding, the Court held that “[t]he fact that the objectives of a constitutional measure could be achieved by an alternative means does not itself establish a violation of the separate amendment rule.” Id. The separate amendment rule does not require that a constitutional amendment adopt the most narrowly tailored means to achieve its goals. It requires “only that the provisions have a sufficient common purpose or principle.” Id.
Nor did the description contained on the petition signature sheets run afoul of Ariz. Rev. Stat. Section 19-102(A). That Section “requires petition signature sheets to include a description of no more than one hundred words of the principle provisions of the proposed measure or constitutional amendment,” followed by a generic notice-disclaimer; it does not require a complete description, but only a description of the principal provisions. Id. ¶ 27 (internal quotations removed). The Court analyzed the description in question for “substantial compliance,” refusing to invalidate the petition unless the description was fraudulent or created a significant danger of confusion or unfairness. Id. ¶ 26. The description’s failure to note that open primaries would not apply to presidential or non-partisan elections was not fatal to the description. Moreover, the Court refused to invalidate the description on the grounds that the description impartially argued in favor of passing the Proposition, holding that Section 19-102(A) does not require the sponsor’s 100-word description to be impartial.
1. Under our current system of partisan primary elections, only voters registered with a party and independent voters, may participate in the party’s primary election. Ariz. Const. Art. 7, § 10; A.R.S. § 16-467.
2. The separate amendment rule requires that when more than one amendment to the Constitution is proposed, voters be allowed to vote against or for each one individually. Save Our Vote, 2013 WL 57692, ¶ 1.
3. The prohibition against public funding of primary elections was contained in Proposition 121, Section 10(g). Opponents of the Proposition argued that this Section constituted a separate constitutional amendment.
