Court hearing on ‘top two primary’ today

Posted by AzBlueMeanie:

This is a Howard Fischer report, so take it for what it is worth. State judge not buying arguments by foes of open primary ballot measure:

A state judge on Friday questioned efforts of foes of an open primary system to keep it from ever going to voters.

The opponents contend that the proposed constitutional amendment illegally deals with too many disparate subjects. Attorney Mike Liburdi said that makes putting it on the November ballot improper.

But during a hearing Friday, Maricopa County Superior Court Judge Mark Brain suggested he was not buying all of Liburdi's arguments that the measure, if approved, would change too many unrelated things.

Brain also was skeptical of Liburdi's contention that a 100-word description of the measure, included on each petition, did not comply with legal requirements that it be solely a factual description of what would change if approved.

The attorney argued that proponents improperly used the description to convince people to sign. But Brain told Liburdi that under his interpretation of the law, there is no way anyone could accurately describe a ballot measure within 100 words.

* * *

The measure initially was fought largely by Republicans who currently dominate Arizona politics. But on Friday, Brain agreed to a request to add two Democratic officials to the legal challenge.

Rep. Steve Gallardo of Phoenix said his concern is that the change could result in fewer Hispanics being elected.

Gallardo lives in a heavily Democratic and largely Hispanic district. And he said most Hispanics are registered as Democrats.

He said that pretty much ensures that the Democratic nominees will be either Hispanic or at least candidates that Hispanics think represent their interests. And given the Democratic registration edge in the district, that makes the Republican nominees pretty much irrelevant by the time the general election comes around.

Under this proposal, he said a single non-Hispanic candidate might face off in the primary against four Hispanics. Gallardo said if the Hispanics split the ethnic vote, that means only one might survive to reach the general election.

All that, however, is legally irrelevant to the court fight over whether the issue gets on the ballot in the first place.

The law according to Howard Fischer? Have you got a source besides your own opinion, Howie?

[Liburdi] said this measure lets candidates spell out the party with which they want to be identified. That, said Liburdi, is a separate issue from open primaries.

Brain appeared unimpressed by that argument.

"They can do that right now,'' the judge said of candidates.

Um, no Judge, they can't. They have to be from a recognized political party, or run as an independent. The initiative would allow people to just make shit up, like "Eat Your Broccoli Party," or "Free Pizza and Beer Party." which are not bona fide political parties but would appear on the ballot.

Liburdi then argued that if the initiative passes it will nullify a provision of the state's Citizens Clean Elections Act which governs how public money is doled out to candidates in certain partisan primaries. That, Liburdi said, is not only another totally different issue than open primaries but also would force lawmakers to alter the 1998 voter-approved law creating public funding.

But the judge appeared more inclined to accept the arguments of Kim Demarchi who represents initiative organizers that it's not that complicated. She said if the measure passes, partisan primaries go away and the provision in the Clean Elections Act automatically becomes obsolete.

Wrong again, Judge. If they want to nulllify provisions of Citizens Clean Elections, it has to be by a separate constitutional initiative. This actually makes the Plaintiffs'  argument that the initiative addresses more than one subject.

Brain appeared a bit more interested in the fact that approval of the initiative would do away with the partisan election of precinct committeemen and committeewomen who by definition are both public officials as well as representatives of their own respective political parties. Liburdi said that issue should be a separate ballot question.

Leave it to Howie to leave the strongest argument of the case to gloss over in a throw-away paragraph at the end of his report. Geezuz, Howie, I posted the briefs and gave you a ful explanation of the arguments, and this is the kind of crappy legal reporting I get back in return? Just take the gold watch and retire already.

I get the sense that Judge Mark Brain has grown tired of all the election cases he has been hearing. He knows that this case is going to be appealed to the Supreme Court regardless, so he is just looking to kick it up to the Supremes and let them take the heat dealing with it.

Expect a ruling early next week, and an appeal to the Arizona Supreme Court.