Posted by AzBlueMeanie:
Thursday, July 5, 2012 is the filing deadline for citizens intiatives in Arizona.
One citizens initiative certain to be filed today before the 5:00 p.m. deadline is the so-called "open elections/open government act" initiative. Last week, the Arizona Legislative Council met to prepare impartial analyses of ballot measures, and based upon their language, it would appear this initiative may be subject to legal challenge. http://azleg.gov/alispdfs/Council/2012BallotMeasures/Adopted_C-03-2012.pdf.
Beginning with the 2014 elections, Proposition ___ would amend the Arizona Constitution by eliminating the longstanding primary election that allows each recognized political party in Arizona to select its own nominee for the general election. In its place would be a primary election system in which registered voters may vote for candidates regardless of political affiliation. A funding source has not been identified that will pay the cost of the open top two primary election that will replace the current system.
Proposition ___ provides that individuals may organize or join political parties and that political parties may elect party officers, support or oppose candidates and otherwise participate in all elections, if the party activity is not paid for or subsidized using public funds.
This initiative appears to be facially flawed. In 2004, Arizona voters approved Proposition 101, amending the Arizona Constitution "to require all subsequent ballot initiatives and referendums to specify a new source of revenue for any required expenditure." No source of revenue is identified in this initiative. The fallback position that the general fund could be used to fund elections would seem to be precluded by the provision that public funds cannot be used for political party activity -- which is what a primary election is. Without an identified funding source, it is unconstitutional under Prop. 101 (2004).
This initiative is a half-baked idea. The Arizona Legislative Council desription provides:
The proposition leaves to future Legislatures and governing bodies a number of issues, including who will have access to the statewide voter database, how vacancies will be handled, what percentage of votes will be set each year as the number of petition signatures required by each candidate for each office to qualify for the ballot, how to pay for the two tier election and how to pay for the cost of implementation and conforming legislation. The Department of Justice must pre-clear any changes.
So the backers of this initiative are going to leave all the details they didn't bother to address to the partisan elected state legislature of whom they disapprove. Freakin' brilliant. Guess how that's going to work out for you?
There is another legal flaw with this half-baked idea:
Each candidate who declared a party preference on their voter registration form would have that preference listed, up to twenty characters, on the nominating petition and on the primary and general election ballots. If no party preference is declared on a candidate's registration form, no preference would be listed on the petition and ballots. All government-issued voter education materials and ballots would contain a notice that any political party registration listed for a candidate is not an indication that the candidate has been nominated or endorsed by that political party.
Remember the Arizona Republican Party's "Green Scheme Siphon Scandal" in 2010, recruiting "fake" Green Party candidates to siphon votes away from Democratic candidates? Don't tell me it can't happen; it already has in Arizona.
Moreover, political parties are private associations protected by the First Amendment right of association. A political party can limit participation in its nominating process to its membership. In 2007, the Arizona Libertarian Party won an exemption from the Arizona Open Primary law in federal district court.
U.S. District Judge Raner C. Collins wrote in Arizona Libertarian Party v. Brewer, “A political party’s right to choose its own nominees is a core associational activity and the mandatory inclusion of unaffiliated persons with the political party may seriously distort the party’s decision. … Due to the potential distortion forced on the Libertarian [P]arty by the mandatory inclusion of those not affiliated with the party, Arizona’s primary system imposes a severe burden on the [party].” See, Ariz. independents can’t vote in Libertarian primary | First Amendment Center.
There are two appellate cases from the state of Washington, which currently uses the top two/open primary, before the U.S. Supreme Court on petitions for a Writ of Certiorari:
Washington State Democratic Central Committee v. Washington State Grange
Issue(s): (1) Whether, when the State of Washington asserts that a general disclaimer prevents voter perceptions that candidates are associated with the party that the candidate “prefers,” it bears the burden of showing the risk of forced association is in fact reduced to a constitutionally acceptable level; (2) whether the principles articulated by federal courts evaluating trademark misuse claims should be applied by analogy in evaluating the likelihood of voter confusion under “top two” systems, in which the candidate for office may choose to appear on the ballot in conjunction with a political party’s name without the party’s consent; and (3) if Washington’s partisan top two system as implemented need not pass strict scrutiny, whether it nevertheless fails to qualify as a reasonable and politically neutral regulation that advances an important state interest.
Libertarian Party of Washington State v. Washington State Grange
Issue(s): (1) Whether, by denying minor parties, including the Libertarian Party, virtually all access to the general election ballot, Washington’s Initiative I-872 -- which provides that the top two votegetters for each office advance to the general election -- violates the constitutional rights of minor parties and voters; (2) whether, by denying the Libertarian Party the right to disavow false candidacies or to acknowledge its nominee on the ballot or in any official publication, I-872 – which provides that candidates for office shall be identified on the ballot by their self-designated “party preference” -- violates the associational rights of the Libertarian Party; (3) whether, by denying the Libertarian Party the right to disavow false candidacies or to acknowledge its nominee on the ballot or in any official publication, I-872 denies the Libertarian Party trademark protection guaranteed by federal law; and (4) whether the unauthorized use of the trademarked name “Libertarian Party” by the State on election ballots to indicate “party preference” of unaffiliated candidates constitutes competition with the Libertarian Party in violation of the Lanham Act?
Both of these petitions for Writ of Certiorari have been calendared for the Supreme Court Conference on September 24, 2012. Here Docket 11-1263 and here Docket 11-1266. The Court may grant Cert in its list of orders when it convenes in October. Briefing and oral arguments are unlikely to occur before Election Day.
Arizona can save itself a lot of trouble and legal expense by rejecting this half-baked idea.
UPDATE: The Washington state appeals above are a follow-up to the U.S. Supreme Court upholding Washington state's top two open primary system in 2008. Washington State Grange v. Washington State Republican Party, 06-713, and Washington et al. v. Washington State Republican Party, 06-730.
In his majority opinion, Justice Clarence Thomas wrote that “there is simply no basis to presume that a well-informed electorate will interpret a candidate's party-preference designation to mean that the candidate is the party's chosen nominee” or that the party approves of the candidate.
Thomas added that “we cannot strike down” Washington's plan “based on the mere possibility of voter confusion.”
While the U.S. Supreme Court upheld the system in 2008, it acknowledged that whether it would continue to pass constitutional muster would depend in part on how the ballots were actually written and whether confusion resulted. The political parties have challenged the system again, saying that allowing candidates to identify themselves as Republicans, Democrats or Libertarians on the ballot could confuse voters, who might believe the candidates are the nominee of a party. That is the basis of these appeals.