Save Our Vote v. bennett/open Government Committee Supporting C-03-2012
Arizona Supreme Court1/7/2013
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Full Opinion
SUPREME COURT OF ARIZONA
En Banc
SAVE OUR VOTE, OPPOSING ) Arizona Supreme Court
C-03-2012, an unincorporated ) No. CV-12-0272-AP/EL
Arizona political committee, )
LISA GRAY, a qualified elector ) Maricopa County
and taxpayer of the State of ) Superior Court
Arizona, JAIME A. MOLERA, a ) No. CV2012-010717
qualified elector and taxpayer )
of the State of Arizona, BARRY )
HESS, a qualified elector and )
taxpayer of the State of Arizona, ) O P I N I O N
and the LEAGUE OF WOMEN VOTERS )
OF ARIZONA, an Arizona )
non-profit corporation, STEVE )
GALLARDO, a qualified elector )
and taxpayer of the State of )
Arizona, MARY ROSE WILCOX, a )
qualified elector and taxpayer )
of the State of Arizona )
)
Plaintiffs/Appellees, )
)
v. )
)
KEN BENNETT, in his official )
capacity as Secretary of State )
of the State of Arizona, )
)
Defendant, )
and )
)
OPEN GOVERNMENT COMMITTEE )
SUPPORTING C-03-2012, an )
unincorporated Arizona political )
committee, )
)
Real Party in Interest/ )
Appellant. )
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Mark H. Brain, Judge
REVERSED
________________________________________________________________
SNELL & WILMER L.L.P. Phoenix
By Michael T. Liburdi
Adam E. Lang
Eric H. Spencer
Attorneys for Save Our Vote, Opposing C-03-2012, Lisa Gray,
Jaime A. Molera, Barry Hess, League of Women Voters of Arizona,
Steve Gallardo, and Mary Rose Wilcox
THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Michele L. Forney, Assistant Attorney General
Attorney for Ken Bennett
LEWIS AND ROCA LLP Phoenix
By Kimberly A. Demarchi
William G. Voit
Attorneys for Open Government Committee
GAMMAGE & BURNHAM P.L.C. Phoenix
By Grady Gammage, Jr.
Cameron C. Artigue
Attorneys for Amicus Curiae Southern Arizona Leadership Council
SCHARF-NORTON CENTER FOR CONSTITUTIONAL LITIGATION Phoenix
AT THE GOLDWATER INSTITUTE
By Clint Bolick
Carrie Ann Sitren
Attorneys for Amicus Curiae Goldwater Institute
LAW OFFICE OF HARRY M. KRESKY New York, NY
By Harry M. Kresky
And
PIETZSCH, BONNETT & WOMACK, P.A. Phoenix
By Michael E. Pietzsch
Attorneys for Amici Curiae Committee for a Unified
Independent Party
VINCE RABAGO LAW OFFICE PLC Tucson
By Vince Rabago
Attorney for Amici Curiae Maricopa County Democratic Party,
Pima County Democratic Party, Ann Wallack, Jeffrey J. Rogers,
Joe Robison, and Jackie Dierks-Walker
JENNINGS, STROUSS, & SALMON, P.L.C. Phoenix
By Shanna N. Orlich
Attorney for Amicus Curiae Arizona Latino Republican Association
2
ARIZONA HOUSE OF REPRESENTATIVES Phoenix
By Peter A. Gentala
And
ARIZONA STATE SENATE Phoenix
By Gregrey G. Jernigan
Attorney for Amici Curiae Steve Pierce and Andrew Tobin
________________________________________________________________
B A L E S, Vice Chief Justice
¶1 The question presented is whether Proposition 121, a
constitutional amendment proposed by voter initiative, complies
with the separate amendment rule of Article 21, Section 1 of the
Arizona Constitution. This rule requires that when more than
one constitutional amendment is proposed, voters must be allowed
to vote for or against each one separately. Proposition 121
would amend the Constitution to replace partisan primary
elections with an open “top two primary” in which all candidates
appear on the same ballot and the two receiving the most votes,
regardless of party, advance to the general election.
¶2 The trial court ruled that Proposition 121 violates
the separate amendment rule and enjoined the Secretary of State
from placing the measure on the November 2012 general election
ballot. On August 17, 2012, we entered an order reversing the
trial court’s judgment and stating that an opinion would follow.
This is that opinion.
I.
¶3 Since statehood, Arizona’s Constitution has provided
3
that “[t]he Legislature shall enact a direct primary election
law.” Ariz. Const. art. 7, § 10.1 This requirement was one way
in which the Constitution sought to ensure popular control over
government through the electoral process. See John D. Leshy,
The Making of the Arizona Constitution, 20 Ariz. St. L.J. 1, 62
(1988).
¶4 Consistent with the constitutional directive,
Arizona’s first state legislature enacted a law “to provide for
primary elections.” 1912 Ariz. Sess. Laws, ch. 84 (1st Spec.
Sess.). This law established the framework that remains in
place today. A “recognized” party - that is, one entitled to
have its candidates appear on the general election ballot - must
nominate its candidates through the primary election. A.R.S.
§§ 16-301, -801, -804 (Supp. 2012). In the primary, only voters
who are registered with a particular party, or not registered
1
Article 7, Section 10 now provides:
The Legislature shall enact a direct primary election
law, which shall provide for the nomination of
candidates for all elective State, county, and city
offices, including candidates for United States
Senator and for Representative in Congress. Any
person who is registered as no party preference or
independent as the party preference or who is
registered with a political party that is not
qualified for representation on the ballot may vote in
the primary election of any one of the political
parties that is qualified for the ballot.
The second sentence in Article 7, Section 10 was added in 1998.
4
with another recognized party (e.g., independent voters), may
vote the party’s ballot. Id. § 16-467. The winner of the
primary appears on the general election ballot along with the
nominees of other recognized parties. See id. § 16-501.2
¶5 Since statehood, the laws regarding primary elections
have also regulated the structure of recognized parties by
requiring them to elect “precinct committeemen.” 1912 Ariz.
Sess. Laws, ch. 84, § 32 (1st Spec. Sess.). Committeemen are
elected at the primary election; they constitute the party’s
county- and district-level committees, and in turn select the
party’s state leadership. See A.R.S. §§ 16-821(A), -823, -825.
Arizona statutes further specify that the committeemen, party
committees, or the state chair will (1) choose a replacement
candidate if a party’s candidate dies or resigns before an
election, id. § 16-343, (2) receive funds contributed to a
recognized party by citizens using the state income tax form,
id. § 16-807, (3) receive a free copy of voter registration
data, id. § 16-168(C), and (4) appoint candidates to serve as
the party's presidential electors, id. § 16-344. Public funds
2
Candidates who are not affiliated with a recognized party
may qualify for the general election ballot by submitting
nominating petitions signed by 3 percent of all the unaffiliated
voters in the relevant electoral district. A.R.S. § 16-341. In
contrast, candidates from recognized parties generally need to
obtain signatures from only .5 percent of their party’s
registered voters to qualify for the ballot. Id. § 16-322.
5
pay for the primary elections used to select precinct
committeemen and the party’s candidates for the general
election. See id. §§ 16-503, -511.
¶6 Proposition 121, titled the “Open Elections/Open
Government Act,” purports to “[a]bolish[] the existing system of
taxpayer-funded primary elections to select nominees for
political parties” and to “[c]reate[] in its place an Open ‘Top
Two’ Primary Election.” Proposition 121, § 2(B) (2012). Under
this proposal, all candidates for an office, regardless of
party, appear on the same ballot and voters may vote for any
candidate; the two candidates who receive the most votes then
face each other in the general election. See id.
¶7 The proposition would replace Article 7, Section 10 of
Arizona’s Constitution with a new Section 10 containing eight
subparts. See Ariz. Sec’y of State, 2012 Publicity Pamphlet 68-
69 (2012) (reproducing text of proposition), available at
http://www.azsos.gov/election/2012/Info/PubPamphlet/english/e-
book.pdf. The new section does not apply to non-partisan or
presidential preference elections; it recognizes a right to vote
in primary and general elections for the candidate of choice
regardless of a voter’s party affiliation; and it outlines
procedures for the top two primary. Proposition 121, § 3
(proposed Sections 10(A) – (C)). New Section 10(D) provides
that the number of voter signatures a candidate must obtain to
6
qualify for the ballot shall be the same for all candidates
regardless of party affiliation. Id. More generally, new
Section 10(H) declares that all qualified voters and candidates
shall be treated equally by laws governing elections regardless
of party affiliation. Id. Candidates may choose to identify
their party affiliation on nomination petitions and the ballot,
but government-issued voter education materials and the ballot
will prominently note that a candidate’s identified affiliation
does not indicate a party’s nomination or endorsement. Id.
(proposed Sections 10(E) – (F)).
¶8 Proposition 121 also contains a proposed Section 10(G)
addressing the rights of political parties:
Nothing in this section shall restrict the right of
individuals to join or organize into political parties
or in any way restrict the right of private
association of political parties. Nothing in this
section shall restrict the parties’ right to
contribute to, endorse, or otherwise support or oppose
candidates for elective office. 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 no such
procedures shall be paid for or subsidized using
public funds.
¶9 Opponents of Proposition 121 – a political committee
named “Save Our Vote, Opposing C-03-2012” along with several
individual voters and the League of Women Voters (collectively
“Opponents”) – filed this action seeking to enjoin the Secretary
of State from placing the measure on the ballot because it
7
violated the separate amendment rule of Article 21, Section 1 of
the Arizona Constitution. That rule provides:
If more than one proposed amendment shall be submitted
at any election, such proposed amendments shall be
submitted in such manner that the electors may vote
for or against such proposed amendments separately.
Ariz. Const. art. 21, § 1. The Opponents also argued that the
petition signature sheets circulated to qualify the measure for
the ballot violated A.R.S. § 19-102(A) because the 100-word
description of the initiative was incomplete, misleading, and
argumentative.
¶10 The trial court accepted the Opponents’ argument that
proposed Section 10(G) is a separate amendment from the other
provisions in Proposition 121. Citing Ariz. Together v. Brewer,
214 Ariz. 118, 121 ¶ 6, 149 P.3d 742, 745 (2007), the court
noted that initiatives are evaluated under the “common purpose
or principle” test to determine whether they violate the
separate amendment rule and concluded that most of the
provisions of Proposition 121 serve to establish a workable open
primary. But, the trial court concluded, “the proposed
prohibition of funding [in Section 10(G)] is entirely different,
and there is no good reason that a vote for or against that
topic should be bundled with a vote on an open primary.”
Without addressing the Opponents’ argument regarding the 100-
word description on the signature sheets, the trial court
8
entered judgment for the Opponents and enjoined the Secretary
from placing Proposition 121 on the ballot.
¶11 The political committee supporting Proposition 121 –
Open Government Committee Supporting C-03-2012 (“Supporters”) -
appealed to this Court pursuant to A.R.S. § 19-122(C). After
expedited briefing, we issued an order reversing the trial
court’s judgment.3
II.
¶12 We review de novo whether a proposition complies with
the separate amendment rule. Ariz. Together, 214 Ariz. at 120
¶ 2, 149 P.3d at 744. “[W]e examine whether provisions of a
proposed amendment 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 ¶ 8, 238 P.3d
619, 622 (2010) (second alteration in original) (internal
quotation marks omitted). This test requires us to consider (1)
whether a proposition’s provisions are “topically related,” and
(2) whether they are “sufficiently interrelated so as to form a
consistent and workable proposition.” Ariz. Together, 214 Ariz.
3
On November 6, 2012, the voters rejected Proposition 121.
Ariz. Sec’y of State, State of Arizona Official Canvas 18 (Dec.
3, 2012), available at
http://www.azsos.gov/election/2012/General/Canvass2012GE.pdf.
9
at 121 ¶ 6, 149 P.3d at 745.
¶13 The provisions in Proposition 121 are topically
related. They 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. Cf. McLaughlin, 225 Ariz. at 354 ¶ 9, 238 P.3d at
622 (assuming that provisions regarding elections for public
office and union elections were topically related because each
pertained to secret ballots).
¶14 The common topicality of the provisions is not
undermined by the fact that the Supporters identify the
Proposition’s purpose as replacing the existing system of
taxpayer-funded primary elections with a non-partisan top two
primary. Eliminating partisan primaries is a particular
application of the more general principle that the state should
not favor political parties or party-affiliated voters in
election-related matters. Moreover, the favored status that
recognized parties enjoy under the partisan primary system and
other election laws is the reason the state has an interest in
regulating internal party governance. See Ariz. Libertarian
Party v. Schmerl, 200 Ariz. 486, 490-92 ¶¶ 14-20, 28 P.3d 948,
952-54 (App. 2001) (noting that the distinctive role recognized
parties play in selecting candidates allows states to regulate
10
their internal structure and afford them advantages such as
preferential access to voter registration data and eligibility
for voluntary taxpayer contributions); cf. Cal. Democratic Party
v. Jones, 530 U.S. 567, 577 (2000) (noting that states may
require parties to select nominees through primaries in order to
resolve intraparty disputes in a democratic fashion).
¶15 We turn to whether the provisions of Proposition 121
are sufficiently interrelated to comply with the separate
amendment rule. This rule does not require “that all components
of a provision be logically dependent on one another.” Ariz.
Together, 214 Ariz. at 122 ¶ 10, 149 P.3d at 746. Instead, we
measure the provisions against objective factors, such as
whether various provisions are facially related,
whether all the matters addressed by an initiative
concern a single section of the constitution,
whether the voters or the legislature historically
has treated the matters addressed as one subject,
and whether the various provisions are qualitatively
similar in their effect on either procedural or
substantive law.
Id. (quoting Korte v. Bayless, 199 Ariz. 173, 177 ¶ 11, 16 P.3d
200, 204 (2001)). Although these factors are not exclusive and
might not all apply in a particular case, they guide our
analysis. McLaughlin, 225 Ariz. at 354 n.2, ¶ 10, 238 P.3d at
622 n.2.
¶16 The provisions of Proposition 121 are not only
facially related, but also logically related. Section 10(G)
11
declares that public funds shall not be used to pay for or
subsidize procedures used by political parties “to elect party
officers, endorse or support candidates, or otherwise
participate in all elections.” This broad prohibition on public
funding of party activities logically embraces Section 10(C)’s
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 to identify a party’s
official candidate for the general election.
¶17 This aspect of Proposition 121 distinguishes this case
from Clean Elections Inst., Inc. v. Brewer, 209 Ariz. 241, 99
P.3d 570 (2004), which found a separate-amendment violation in a
ballot measure related to the Citizens Clean Elections
Commission. One provision would have prohibited public funding
of candidates’ political campaigns, thereby displacing
provisions of the Clean Elections Act that require such funding.
Id. at 246 ¶ 18, 99 P.3d at 575. Another provision would have
eliminated the statutorily mandated funding for all the
Commission’s other duties, including voter education and debate
programs that were unaffected by the provision barring funding
of political campaigns. Id. at 245-46 ¶¶ 13, 19, 99 P.3d at
574-75. The Court found no facial relationship between these
provisions because they did not advance any “common purpose or
12
principle.” Id. at 246 ¶ 20, 99 P.3d at 575. That is, the
candidate funding prohibition did not logically imply
eliminating the Commission’s funding dedicated to other
purposes.
¶18 Clean Elections is also distinguishable because there
the Court relied on predictions about the views of a “reasonable
voter,” noting that “[w]e cannot conclude from any objective
factor that voters favoring one proposition would likely favor
the other.” Id. at 247 ¶ 25, 99 P.3d at 576. Although Clean
Elections followed prior cases in considering the views of a
“reasonable voter,” see id. at 246 ¶ 17, 99 P.3d at 575, we have
since abandoned that approach, and now “apply[] the topicality
and interrelatedness approach to assess whether a common purpose
or principle joins the provisions of a proposed amendment,”
Ariz. Together, 214 Ariz. at 124 ¶ 21, 149 P.3d at 748.
¶19 Applying the interrelatedness approach here, we note
the provisions of Proposition 121 all concern Article 7, Section
10 of the Arizona Constitution. Moreover, as noted, supra ¶ 5,
Arizona’s legislature has historically treated the matters
addressed in Proposition 121 as one subject, inasmuch as the
“direct primary law” enacted by the first state legislature
embraced not only the creation of partisan primary elections but
also the election of precinct committeemen and other aspects of
internal party governance. See 1912 Ariz. Sess. Laws, ch. 84, §
13
32 (1st Spec. Sess.). Finally, the provisions are
“qualitatively similar” in their effect on procedural or
substantive law. Replacing the partisan primary with an open
primary in which candidates and voters participate without
regard to party affiliation is qualitatively similar in its
effect to the broader provisions in Proposition 121 mandating a
level playing field regardless of party and barring public
funding for specified political party activities. Cf. Ariz.
Together, 214 Ariz. at 123 ¶ 17, 149 P.3d at 747 (concluding
that the provisions were qualitatively similar where they each
affected substantive law, pertained to the same subject, and
derived meaning and effect from each other).
¶20 In arguing that Proposition 121 does not have
sufficient interrelatedness, the Opponents note that two other
states have adopted open primaries while preserving state-funded
elections of party precinct committeemen. The Opponents, and
certain amici supporting their position, agree with the trial
court that “there is no good reason” that a vote for or against
funding of certain party activities “should be bundled with a
vote on an open primary.” Opponents also contend that if
Proposition 121 were adopted, it would require changes in a
large number of Arizona statutes.
¶21 We are not persuaded. The fact that the objectives of
a constitutional measure could be achieved by an alternative
14
means does not itself establish a violation of the separate
amendment rule. See Korte, 199 Ariz. at 178 ¶ 16, 16 P.3d at
205 (noting that “a proposal can comply with the [separate
amendment] rule even though alternative proposals exist”). The
separate amendment rule does not require that a constitutional
amendment identify the most narrowly tailored means for
achieving identified goals, only that the provisions have a
sufficient common purpose or principle. See id. ¶ 15, 16 P.3d
at 205 (holding that “multifaceted approach” to amending
provisions in Article 10 regarding state trust lands did not
violate separate amendment rule). Nor does the fact that a
proposition, if adopted, would require extensive statutory
changes necessarily suggest that the proposition violates the
separate amendment rule. See Ariz. Together, 214 Ariz. at 123
¶ 15, 149 P.3d at 747. Finally, assertions that there is no
“good reason” to combine Proposition 121’s different provisions
into one ballot measure appear to speculate about the views of
hypothetical voters. As noted, supra ¶ 18, our separate
amendment analysis no longer turns on whether a reasonable voter
would likely support one provision in a proposed constitutional
amendment without supporting another, but rather on the
topicality and interrelatedness of the provisions.
¶22 Because the provisions contained in Proposition 121
share both topicality and interrelatedness, we conclude they are
15
“sufficiently related to a common purpose or principle” and do
not violate the separate amendment rule. Id. at 125 ¶ 23, 149
P.3d at 749 (quoting Korte, 199 Ariz. at 177 ¶ 10, 16 P.3d at
204).
III.
¶23 The Opponents also argued below that the Secretary
should be enjoined from placing Proposition 121 on the ballot
because the petition signature sheets for the measure violated
A.R.S. § 19-102(A). This statute requires petition signature
sheets to include “a description of no more than one hundred
words of the principal provisions of the proposed measure or
constitutional amendment,” followed by this notice:
Notice: This is only a description of the proposed
measure (or constitutional amendment) prepared by the
sponsor of the measure. It may not include every
provision contained in the measure. Before signing,
make sure the title and text of the measure are
attached. You have the right to read or examine the
title and text before signing.
Id.
¶24 The petition signature sheets for Proposition 121
contained this description:
This measure will allow all Arizonans, regardless of
party affiliation, to vote in a single open primary
for candidates of their choice. The two candidates
who receive the most votes in the primary will compete
in the general election. There will be a level
playing field for all voters and candidates, and the
current system of taxpayer-funded partisan primaries
will be abolished. This reform will promote open
government and encourage the election of candidates
16
who will work together for the good of the state.
This description was followed by the required notice that it was
prepared by the sponsor and might not include every provision
contained in the measure and that voters were entitled to read
the measure’s title and text before signing.
¶25 The Opponents argued that the 100-word description
violates § l9-102(A) because it (l) omits reference to the
exclusion of presidential and non-partisan elections, (2)
contains misleading statements as to its effects, and (3)
contains impermissible argument and advocacy.
¶26 Alleged errors in the form of initiative petitions are
reviewed for “substantial compliance.” Wilhelm v. Brewer, 219
Ariz. 45, 46 ¶ 2, 192 P.3d 404, 405 (2008). Descriptive
information included on petition signature sheets will not
invalidate the petitions unless it is fraudulent or creates a
significant danger of confusion or unfairness. See Kromko v.
Superior Court, 168 Ariz. 51, 58-59, 811 P.2d 12, 19-20 (1991).
¶27 The Opponents have not shown that the 100-word
description fails to substantially comply with § 19-102(A). The
failure to note that open primaries would not apply to
presidential elections or non-partisan elections is not a fatal
omission, as it does not render the description fraudulent or
misleading, particularly in light of the accompanying notice
regarding the description. The Opponents object that the
17
description fails to completely describe the effects of
implementing Proposition 121. Section 19-102(A), however,
requires only a description of the principal provisions, not a
complete description, and the accompanying disclaimer expressly
notes that the description might not include all the provisions
in the measure. Finally, the Opponents protest that the
description contains “impermissible” argument and advocacy,
focusing on the language about a “level playing field” and the
concluding sentence stating “[t]his reform will promote open
government and encourage the election of candidates who will
work together for the good of the state.”
¶28 Section 19-102(A) does not by its terms require the
sponsor’s 100-word description to be impartial. Cf. A.R.S.
§ 19-124(B) (requiring legislative council to prepare “impartial
analysis” of ballot measures). Although the summary here – like
those accompanying other ballot measures – describes the
intended effects of the measure in a way that might appeal to
prospective voters, that fact does not mean the signature sheets
failed to substantially comply with the statutory requirements.
We conclude that the 100-word description does not create a
substantial danger of fraud, confusion, or unfairness sufficient
to invalidate the petition signature sheets. Cf. Kromko, 168
Ariz. at 59-60, 811 P.2d at 20-21 (refusing to strike petitions
based on allegedly incomplete and misleading information in
18
extraneous short titles on petition sheets).
IV.
¶29 Various arguments have been made to this Court whether
the proposed top two primary would be desirable or instead
detrimental as a matter of public policy. These arguments are
misdirected. Our conclusion that Proposition 121 satisfies the
separate amendment rule says nothing about whether the measure
should be approved. If a ballot measure meets the statutory and
constitutional requirements to appear on the ballot, its wisdom
as a policy matter is for the voters to decide. See Korte, 199
Ariz. at 178 ¶ 16, 16 P.3d at 205.
¶30 For the reasons stated, we reverse the trial court’s
judgment.
__________________________________
Scott Bales, Vice Chief Justice
CONCURRING:
__________________________________
Rebecca White Berch, Chief Justice
__________________________________
A. John Pelander, Justice
__________________________________
Robert M. Brutinel, Justice
19
__________________________________
Patricia A. Orozco, Judge*
*Pursuant to Article 6, Section 3 of the Arizona Constitution,
the Honorable Patricia A. Orozco, Judge of the Arizona Court of
Appeals, Division One, was designated to sit in this matter.
20