Open Elections/Open Government Act initiative oral arguments this Friday

Posted by AzBlueMeanie:

The Open Elections/Open Government Act initiative (.pdf) is presently scheduled for oral argument before Maricopa County Superior Court Judge Mark Brain on Friday, August 3 at 9:30 a.m.

The Plaintiffs, Save Our Vote Opposing C-03-2012, have filed their Opening Brief (.pdf).

The Real Party in Interest, Open Government Committee, has filed its Opposition Brief (.pdf).

Let's break it down.

This is a "separate amendment rule" aka "single subject rule" challenge to the initiative. Arizona Const. Art. 21 § 1. Plaintiffs argue first that "In addition to proposing a top-two primary system, the Initiative seeks to rewrite scores of statutes that, among other areas, govern the conduct of elections, nomination procedures, nomination signature and other ballot access requirements, campaign finance regulation, political party organization and conduct, and Voting Rights Act compliance."

Second, Plaintiffs argue "Complicating matters is that the Initiative fails to propose these amendments in black-and-white language for voters to evaluate."

Third, "the Initiative's 100 word statement that appears on the petition signature sheets grossly misstates what the voters are being asked to approve."

Plaintiffs divide the "separate amendment rule" challenge into five subcategories.

The first category of amendment proposes to establish the top-two primary system by repealing Arizona Const. Art. 7, § 10. Initiative at 3, § 10.A-C. "In and of themselves these provisions are sufficient to establish the top-two primary. But the Initiative does more . . . If enacted, six additional provisions, having nothing to do with a top-two primary, will require a complete top-to-bottom overhaul of Arizona's election code."

The second category of amendment relates to the designation of party preferences on voter registration rolls and on ballots. Initiative, at 3, § 10.B, E, and F.

The third category of amendment relates to filing and petition signature gathering requirements. Initiative, at 3, § 10.D.

The fourth category of amendment relates to abolishing the existing system of taxpayer-funded primary elections, "Including elections for precinct committee-members pf political parties." Initiative, at 3, § 10.G.

The fifth category of amendment requires the law to treat all candidates equally regardless of the candidate's affiliation with a political party (or lack thereof). Initiative, at 3, § 10.H.

Finally, plaintiffs also challenge the 100 word description of the initiative.

Without going into a detailed explanation (see the pleadings) the Arizona Supreme Court has established a two-pronged "common purpose or principle test" for the "separate amendment rule":

First, the proposed amendment's provisions must be topically related: All the provisions must embrace the same "general topic." Second, the provisions must be sufficiently interrelated so as to form a consistent and workable proposition that "logically speaking should stand or fall as a whole."

Plaintiffs argue the initiative violates the first topical relation prong of the test. "While the Initiative's subsections (A) to (C) might be related to the topic of conducting primary elections, the sweeping language of subsections (D) through (H) relate to several different topics, such as campaign finance, political party structure, voter registration, and political party affiliation. For this reason alone the Initiative violates the Separate Amendment Rule …"

The initiative proposes to abolishing the existing system of taxpayer-funded primary elections, and replace it with a top-two primary. The effect of this amendment "will prohibit Independents and candidates from minor but recognized parties, such as the Libertarian and Green Party from appearing on the general election ballot unless they place in the top two of the primary. " As I have argued previously, not only does this significant change in law deprive these candidates of general election ballot access, "It significantly eliminates voter choices at the general election."

Initiative backers claim it will increase voter options at the primary — when voter turnout is anaemically low — but the effect of the initiative is to reduce voter options at the general election, which is never good for a democracy.

Plaintiffs rely on the Arizona Supreme Court decision in Clean Elections Institute v. Brewer, 209 Ariz. 241, 99 P.3d 570 (2004) in which the Court invalidated a proposed legislative referendum to overturn Arizona's Citizens Clean Elections system, to argue that "the Initiative, at 3, § 10.B and D-H have nothing to do with a top-two primary."

Plaintiffs make what I believe to be a compelling argument regarding political party structure and the election of precinct committeemen (at pp. 11-13 of Opening Brief). Precinct committeemen are the political parties' official membership. Under current law, they are elected at the primary election, and only elected precinct committeemen may participate in electing officers to district organizations and county organizations, and to elect state committeemen to organize the state political party organizations. Keep in mind that political parties are associations with the First Amendment right of association to determine qualifications of their membership.

Plaintiffs point out several problems, but the critical point is that "parties will no longer control their own elections." The initiative gives all qualified voters the right to vote in all elections, so non-party members would be permitted to vote for a political party's precinct committeemen. As the plaintiffs argue, voters from Party A could elect the precinct committeemen from Party B, and in numbers in excess of precinct committeemen determined by a statutory formula.

This infringes upon the political party's (association's) constitutional First Amendment right of association in my opinion. Initiative backers cite Supreme Court cases regarding Washington state's top-two primary system. But these cases involved candidates for elective office, not precinct committeemen who are the official membership of the political party organizations. This issue has not been addressed by the Court.

Now, I an sure that initiative backers will cite the Initiative, at 3, § 10.G: "Political parties may establish such procedures as they see fit to elect party officers …" Are they broadly defining "party officers" to include all precinct committeemen? Because that defies reason and logic. The statutory framework provides that precinct committeemen who are elected at the primary election elect party officers at organizational meetings. Are they suggesting that political parties establish a separate parallel system for election of precinct committeemen? Because this only serves to make the Plaintiffs' case that this initiative effects a significant change in law that is topically unrelated to the top-two primary.

Plaintiffs next argue that the initiative effects changes in Arizona's Citizens Clean Elections system. Under current law, participating Clean Elections candidates receive a distribution of funds for the primary election. The initiative would prohibit fund shifting to the primary election. This could effectively end participation in Citizens Clean Elections (an undisclosed goal of some of the Chamber of Commerce supporters of this initiative). Plaintiffs correctly argue that this significant change in law is topically unrelated to the top-two primary. See, Clean Elections Institute v. Brewer, 209 Ariz. 241, 99 P.3d 570 (2004).

Plaintiffs next argue that the initiative may result in a violation of Section 2 of the Voting Rights Act by diluting minority voters' ability to elect one of their own in a minority-majority district (VRA district). While I agree with the premise of this argument, this is really a post-enactment legal challenge to the initiative during the Department of Justice preclearance review, not a pre-ballot challenge. If the initiative is enacted, all of the statutory changes needed to implement it will also be subject to DOJ preclearance review. This has substantial litigation delays and expense written all over it.

Plaintiffs next argue that the initiative effects significant changes in voter registration by permitting voters "to state their party preference (if any) in their own words on their voter registration form, and shall not be limited to selecting from a list of recognized parties or affiliations." In other words, you get to make shit up. This will lead to people declaring "political party" affiliations from the humorous to the profane, but it will not be a bona fide political party. There is a body of law recently invoked by Secretary of State Ken Bennett to prevent "voter confusion" on the ballot. The initiative invites ballot confusion; in fact, the initiative backers in their Opposition Brief approvingly cite examples from the state of Washington. Plaintiffs correctly argue that this significant change in law is topically unrelated to the top-two primary.

Plaintiffs next argue that the initiative "dramatically changes the distribution and cost of voter registration lists and early voting data." Plaintiffs argue that because bona fide major political parties get this information at no cost, this will mandate universal access for all parties — even one voter who made shit up on his voter registration form — would be entitled to receive this information at no cost.

I have to disagree here. It is far more likely that county recorders and the Secretary of State will adopt a uniform fee, which will result in additional costs to the bona fide major political parties.

The reason for this is that voter lists contain confidential information that some yahoo who runs for office could abuse for a commercial purpose. Yes, it is against the law, but again, a yahoo. This information should not be provided free of charge to anyone who walks in off the street.

There is a more critical argument not raised by the Plaintiffs in their Opening Brief that I would have raised here instead. The initiative proposes to abolish the existing system of taxpayer-funded primary elections to select nominees for political parties. If taxpayer funds cannot be used for the cost of a primary election, then who exactly is going to pay for it? The initiative backers are being too clever by half by claiming that since it is an "open primary," the state of Arizona and its counties will continue to pay for the primary election costs as always, i.e., it is a zero-sum.

The problem is that by replacing the current primary election system with a significantly new one that also involves the expenditure of public money, the initiative must comply with Prop. 101 (2004) and identify a revenue source for the cost of this new primary election system. There is no language in the initiative that in any way complies with Prop. 101 (2004). Plaintiffs should at least raise this argument.

Plaintiffs also argue the initiative violates the second "sufficiently related" prong of the "common purpose or principle test." Contrary to initiative backers' assertions that this initiative amends only one provision of the Constitution (as written), it will impact several other constitutional provisions in effect. (pp. 19 Opening Brief).

One provision Plaintiffs did not raise in their Opening Brief is Arizona Const. Art. XIII, § 2 (charter cities). This initiative will directly infringe upon the constitutional right of charter cities, like the City of Tucson, to conduct its city elections in accordance with its City Charter. City of Tucson v. Southern Arizona Leadership Council and Jonathan Paton (2011). This initiative would accomplish what "Paton's Law" did not. It would require the City of Tucson to amend its City Charter, subject to approval by public vote. There is no language in the initiative that in any way alerts voters in the City of Tucson to this substantial change in law.

The plaintiffs conclude with their argument that "the Initiative's 100 word statement that appears on the petition signature sheets grossly misstates what the voters are being asked to approve" in violation of A.R.S. § 19-102(A). (pp. 20-23 Opening Brief). Plaintiffs make a compelling argument, and I would add the additional points I have made above.

The Opposition Brief does not attempt to respond to each of these arguments, at one point simply asserting that "the Act does none of the things alleged in these paragraphs, making it impossible to respond in this [Opposition] Brief without further specifics regarding the basis for these allegations." This is the "plain text" dodge — the initiatiive backers want to limit review to the plain text and not the impact or effect on other constitutional provisions or statutory law that a thoughtful "separate amendment rule" analysis requires.

I find the Opposition Brief unpersuasive, and in some instances specious. I would hope that Judge Brain gives more thoughtful analysis to this case than the Open Government Committee has in its Opposition Brief.