Arizona Superior Court Finds that Top-Two Open Primary Initiative Violates the Single-Subject Rule; an Appeal is Likely

On August 6, Arizona Superior Court Judge Mark H. Brain ruled that the initiative for a top-two open primary violates the single-subject rule, and therefore cannot be on the ballot. He found that the portion of the initiative that eliminates elections for party committeemember is not the same subject as imposing a top-two primary for public office. The decision is Save Our Vote v Bennett, cv2012-010717. UPDATE: here is a newspaper story about the decision.

It is extremely likely that the proponents will appeal this decision to the Arizona Supreme Court. The decision does not say, but it is true, that the other top-two primary states continue to let voters choose party officers. This is true in California, Louisiana, and Washington state.

The decision is three pages and says, “The Open Government Committee claims that ‘the only change is that the publicly funded partisan primary through which the parties selected those party officers in the past will no longer provide a venue to select those officers, because it will no longer exist.’ But that’s not what the initiative says. It would be one thing if the initiative provided that candidates for such offices (party offices) will no longer appear on the non-partisan primary ballot – such a provision would directly relate to how the primary election would work. Instead, this provision prohibits state assistance in any form or forum and at any time.” The initiative says, “Political parties may establish such procedures as they see fit to elect party officers, but no such procedures shall be paid for or subsidized using public funds.”

The question is not whether using public funds to elect party officers is good or bad policy, but whether using public funds to elect party officers is the same subject, or a different subject, that changing the method by which public officers are elected.

8 comments

  1. Nick Kruse · · Reply

    The thing I like about top-two is this:

    In states like Illinois, New York, and California, it is obvious that the Democrats will win the state-wide offices. In the deep south, it is obvious that the Republicans will win the state-wide offices. What top-two does is allow voters in the political minority in those states to help decide *WHICH* Democrat (in places like Illinois) or Republican (in the deep south) will win the race.

    Yes, there are some flaws with top-two. Yes, I would rather see Instant Runoff Voting or approval voting. But I believe top-two is better than the voting system that is currently used in most of the states.

  2. Demo Rep · · Reply

    Gerrymanders control all currently.

    P.R. = Total Votes / Total Seats = EQUAL votes needed for each seat winner — across district lines via pre-election candidate rank order lists.
    Excess winner votes down.
    Loser votes up.
    Both majority rule and minority representation.
    ALL voters elect a legislator directly or indirectly.

  3. This is exactly what I told them not to do when this was being developed. The process I spoke to them about was first, any party can pay for any selection process they want to designate their candidate choices. Then these party choices, any other party member, independents, and write-ins would be on the open primary ballot funded by the tax payers. To make this work, the entry to get on the ballot must be as equal as possible.

  4. Cont. of #3 – The open primary voting could result with a winner if the candidate gets 60%+. Otherwise you then go to the Top Two in the General. This could make an uncontested still having to convince the electorate, as any write-in could get enough to cause a General.

    Another twist, if the turnout is under a certain % value, there will be a Top Two General.

  5. Richard Winger · · Reply

    #4, the Washington and California top-two laws provide that there is always an election in November. Even if only one person is running, there is an election in November.

  6. Jim Riley · · Reply

    #5 That is how it has worked in Nebraska for the last 70+ years. They do have a provision for petitioning to get on the ballot in exceptional cases where there is only one candidate, but it is a very steep barrier.

    Some cities with Top 2 primaries cancel the primary if fewer than 2N candidates file.

  7. Everyone. We are in the 21st Century. It is time to re-think our political process. We now have a different electerate then when these archaic rules were created. It does not work anymore!

  8. Jim Riley · · Reply

    The actual measure says that political parties are free to establish their own procedures for:

    (1) Endorsing or supporting candidates;
    (2) Electing party officers; or
    (3) Otherwise participating in elections.

    From the perspective of a voter in a partisan primary system, the winner of the primary is endorsed by the party. For example, most Tennesseans would see Mark Clayton as being endorsed and supported by the Tennessee Democratic party, even though the party bosses have publicly disavowed him.

    Some, such as Supreme Court Justice Antonin Scalia, have suggested that the mere presence of a party name indicates party endorsement, even in the candidate-oriented systems used in Washington and California, where it is intended to indicate the personal political beliefs of the candidate.

    So a State that permits candidates to use partisan labels, but does not recognize party endorsements or “nominations” is at the limit of how much they may be involved in party affairs.

    It is a contradiction to have the State funding the “endorsement or supporting” procedures but somehow to not making a restriction of those procedures. Before the State wrote the check, they’d want to know exactly what procedure had been used by the party. He who pays the piper calls the tune. Arizona may not call the tune; therefore it can not pay the piper.

    The prohibition on State funding of “endorsing or supporting” procedures is a totally consistent and necessary part of the Top 2 Open Primary.

    In Washington and California, party elections are a contaminant of open primaries, requiring partisan-specific ballots and potentially disenfranchising voters who are led to believe that the primaries are still partisan affairs, and that independents and minor party supporters should not participate.

    The Arizona measure specifically applies to all elections in which party affiliation may appear on the ballot, with the exception of presidential elections. If the ballot says “Democratic Precinct Chair”, it denotes the party affiliation of the candidates, and therefore all voters would be eligible to vote in that contest, as well as the “Republican Precinct Chair”, “Libertarian Precinct Chair”, and “Green Precinct Chair”. So it is consistent with the principle of all voters being able to vote for all offices (except presidential primaries) to remove these offices from the ballot.

    This is in contrast to California where the State is required to provide for election of party offices, or Washington, where the state constitution implies their existence. California and Washington should amend their constitutions.

    A “procedure to elect” is indistinguishable from an “election”. And since the intent is that all Arizonans be able to vote in elections for all offices (except presidential primaries), they must be removed from the ballot.

    But if the political parties then decided to elect their officials in conventions, or by a mail ballot, it would risk being entangled in their endorsement activities. It would be a subterfuge for Arizona to defray the cost of a mail ballot election of party offices, if that ballot was also determining the endorsements of the party; or even if those party officials then went ahead and made the endorsements.

    So State financial support of the election of party officials is not distinguishable from State financial support of the endorsement activities of political parties and therefore is a necessary component of the singular purpose of the Top 2 Open Primary.

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