Photo by Jim Small | Arizona Mirror
Using the signature-counting formula to double-count invalid signatures when determining whether a citizen initiative qualifies for the ballot is unconstitutional, the state’s Supreme Court concluded this week, in an opinion explaining a ruling it made nearly a year ago.
At the center of that opinion was a legal challenge that aimed to kick last year’s Proposition 140, also known as the Make Elections Fair Act, off the 2024 ballot.
In order to put a question on the ballot asking voters to amend the state constitution, Arizona requires valid signatures equal to 15% of the number of votes cast in the last governor’s election, giving Make Elections Fair a threshold of 383,923 signatures. The campaign collected more than 580,000 signatures, but as with all such petitions, a chunk of them were thrown out as duplicates or from people who weren’t registered voters.
If the voters favored it, the constitutional amendment would have done away with partisan primary elections, allowing all registered voters to choose from all the candidates in the primary, regardless of their party affiliation. The top vote-getters would then advance to the general election, even if they didn’t represent different parties.
Make Elections Fair, which aimed to quash extreme divisiveness in the state’s elections, had detractors from both sides of the aisle.
Opponents of Prop. 140, including the Arizona Free Enterprise Club, claimed that the Make Elections Fair campaign failed to collect enough valid signatures to reach the 15% threshold. But a trial judge and the Arizona Supreme Court both found that, as it was applied in the Free Enterprise Club’s challenge to Prop. 140, the mathematical formula that Arizona uses to determine the number of qualified signatures violated both the state and U.S. constitutions.
Arizona voters ultimately rejected the proposition by about 18 percentage points, a month after the state’s high court issued its initial, expedited ruling on the case on Oct. 4, 2024.
The man behind the Make Elections Fair Act campaign, political consultant Chuck Coughlin, told the Arizona Mirror that even though the courts allowed the proposition to proceed to the ballot, the court challenge that ended only a month before Election Day doomed the campaign.
“Our opponents achieved their objective,” Coughlin said. “It was great to win (in court), but regrettable that we lost our ability to campaign.”
With resources tied up in court until just 30 days before the Nov. 5 election, Coughlin said he couldn’t justify spending donor money on campaigning, or asking for more donations, until it was clear that Prop. 140 would make it on the ballot and that votes for it would be counted.
Scot Mussi, president of the Free Enterprise Club, told the Mirror via email that he stands behind the club’s comments made after the initial ruling last year, in which he claimed that Prop. 140 “lacked the minimum number to qualify for the ballot to even be considered by voters in November.”
But Arizona’s Supreme Court unanimously disagreed. The opinion released Aug. 6, explaining the case law and reasoning behind the court’s Oct. 4, 2024 decision was authored by Vice Chief Justice John Lopez.
Lopez wrote that the way the statutory mathematical formula was applied in this case required the Secretary of State to double-count some invalid signatures, increasing the qualification threshold from 15% to 15.2%.
“The founders of the Arizona Constitution deliberately selected a 15% signature threshold to qualify initiatives for the ballot — nothing more, nothing less,” Lopez wrote.
In a brief supporting the disqualification of Prop. 140 from the ballot last year, Arizona’s Senate President Warren Petersen and then-Speaker of the House of Representatives Ben Toma, both Republicans, told the court that the fraction-of-a-percentage-point difference was so small that it didn’t matter.
The justices disagreed.
“The increase is not insignificant — it is dispositive,” Lopez wrote.
The high court pointed out that, in this case specifically, with a razor-thin margin between making the ballot and failing to do so, the double counting would have disqualified Prop. 140 from the ballot.
The justices also said that they could not “so readily dismiss” a requirement laid out so clearly in the Arizona Constitution.
“The 15% threshold is a fixed point that neither this Court nor the legislature can increase, even incrementally,” Lopez wrote.
The justices acknowledged that, in most initiative signature challenge cases, which are all subject to the same mathematical formula used in this case, the modest increase in required signatures makes no impact on the outcome.
“But in close cases, as here, the statute’s double counting may operate to improperly disqualify an initiative from the ballot by effectively increasing the 15% signature requirement,” Lopez wrote. “We defer to the legislature to decide whether to reconsider the statutory signature validation formula in light of its potential to violate the Arizona and United States Constitutions in closely contested initiative signature challenges.”
Petersen did not respond to a request for comment on the Supreme Court’s opinion, or to a question about whether the legislature would plan to take action next year to bring the signature formula in line with the state and U.S. constitutions.
“We have not made any decisions about whether or not additional legislative action will be taken,” Mussi told the Mirror in an Aug. 7 email.
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