SAVE OUR VOTE et al v. BENNETT/OPEN GOVERNMENT COMMITTEE SUPPORTING C-03-2012

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SUPREME COURT OF ARIZONA En Banc SAVE OUR VOTE, OPPOSING C-03-2012, an unincorporated Arizona political committee, LISA GRAY, a qualified elector and taxpayer of the State of Arizona, JAIME A. MOLERA, a qualified elector and taxpayer of the State of Arizona, BARRY HESS, a qualified elector and taxpayer of the State of Arizona, 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. ) __________________________________) Arizona Supreme Court No. CV-12-0272-AP/EL Maricopa County Superior Court No. CV2012-010717 O P I N I O N 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 By Michele L. Forney, Assistant Attorney General Attorney for Ken Bennett Phoenix LEWIS AND ROCA LLP By Kimberly A. Demarchi William G. Voit Attorneys for Open Government Committee Phoenix 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 AT THE GOLDWATER INSTITUTE By Clint Bolick Carrie Ann Sitren Attorneys for Amicus Curiae Goldwater Institute LAW OFFICE OF HARRY M. KRESKY By Harry M. Kresky Phoenix New York, NY And PIETZSCH, BONNETT & WOMACK, P.A. By Michael E. Pietzsch Attorneys for Amici Curiae Committee for a Unified Independent Party Phoenix 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 By Peter A. Gentala Phoenix 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. would amend the Constitution to replace Proposition 121 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. Sess.). 1912 Ariz. Sess. Laws, ch. 84 (1st Spec. 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. §§ 16-301, -801, -804 (Supp. 2012). A.R.S. 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 See id. § 16-501.2 nominees of other recognized parties. ¶5 have Since statehood, the laws regarding primary elections also regulated the structure of recognized parties requiring them to elect precinct committeemen. Sess. Laws, ch. 84, § 32 (1st Spec. Sess.). by 1912 Ariz. 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 election, id. a § party s 16-343, candidate (2) dies receive or funds resigns before contributed to an 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 committeemen election. ¶6 primary and the elections party s used to candidates select for precinct the general See id. §§ 16-503, -511. 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. this proposal, all Proposition 121, § 2(B) (2012). candidates for an office, Under 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. ¶7 See id. The proposition would replace Article 7, Section 10 of Arizona s Constitution with a new Section 10 containing eight subparts. 69 (2012) See Ariz. Sec y of State, 2012 Publicity Pamphlet 68(reproducing text of proposition), available at http://www.azsos.gov/election/2012/Info/PubPamphlet/english/ebook.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 procedures for a voter s the top party two affiliation; primary. (proposed Sections 10(A) (C)). and it Proposition outlines 121, § 3 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 7 on the ballot because it 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 separate test amendment to rule determine and whether concluded they violate that most of the 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 100word description on the signature 8 sheets, the trial court 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 trial briefing, we issued an order reversing the court s judgment.3 II. ¶12 We review de novo whether a proposition complies with the separate amendment rule. ¶ 2, 149 P.3d at 744. Ariz. Together, 214 Ariz. at 120 [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 whole. 619, 622 speaking, . . . should stand or fall as a McLaughlin v. Bennett, 225 Ariz. 351, 354 ¶ 8, 238 P.3d (2010) (second quotation marks omitted). alteration in original) (internal 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 related. They candidates should in concern be Proposition whether 121 political afforded favored are parties treatment topically and - their through taxpayer-funded partisan primaries, the provisions of laws or regulations, elections. 622 or public funding - with regard to Arizona Cf. McLaughlin, 225 Ariz. at 354 ¶ 9, 238 P.3d at (assuming that provisions regarding elections for public office and union elections were topically related because each pertained to secret ballots). ¶14 The undermined common by Proposition s the topicality fact purpose that as of the replacing the provisions Supporters the is not identify 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 election-related parties matters. or party-affiliated Moreover, the favored voters status in 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 are We turn to whether the provisions of Proposition 121 sufficiently amendment rule. interrelated to comply with the separate This rule does not require that all components of a provision be logically dependent on one another. Together, 214 Ariz. at 122 ¶ 10, 149 P.3d at 746. Ariz. 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)). might not analysis. all Although these factors are not exclusive and apply in a particular case, they guide our McLaughlin, 225 Ariz. at 354 n.2, ¶ 10, 238 P.3d at 622 n.2. ¶16 The provisions of Proposition 121 facially related, but also logically related. 11 are not only Section 10(G) 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 participate in all elections. candidates, or otherwise This broad prohibition on public funding of party activities logically embraces Section 10(C) s elimination of partisan primaries. used to support a party s If public monies cannot be 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 Commission. of related to the Citizens Clean Elections One provision would have prohibited public funding candidates political campaigns, thereby displacing provisions of the Clean Elections Act that require such funding. Id. at 246 ¶ 18, 99 P.3d at 575. eliminated the statutorily Another provision would have 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. 574-75. Id. at 245-46 ¶¶ 13, 19, 99 P.3d at 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. candidate funding eliminating the prohibition Commission s did not funding That is, the logically dedicated to imply 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. Arizona s legislature has Moreover, as noted, supra ¶ 5, 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. qualitatively similar substantive law. primary regard in to Sess.). which party in Finally, their the effect provisions on are procedural or Replacing the partisan primary with an open candidates affiliation and is voters participate qualitatively similar without in its effect to the broader provisions in Proposition 121 mandating a level playing field regardless of party and barring funding for specified political party activities. public 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. 205 (noting See Korte, 199 Ariz. at 178 ¶ 16, 16 P.3d at 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 achieving identified most goals, narrowly only that tailored the sufficient common purpose or principle. at 205 (holding that multifaceted means provisions for have a See id. ¶ 15, 16 P.3d approach to amending provisions in Article 10 regarding state trust lands did not violate separate amendment rule). proposition, if adopted, would Nor does the fact that a 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 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 16 121 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 violates § Opponents l9-102(A) exclusion of contains argued because presidential misleading that it and statements the (l) 100-word omits reference non-partisan as to its description to elections, effects, and the (2) (3) contains impermissible argument and advocacy. ¶26 Alleged errors in the form of initiative petitions are reviewed for substantial compliance. Ariz. 45, 46 information ¶ 2, included 192 on P.3d 404, petition Wilhelm v. Brewer, 219 405 (2008). signature Descriptive 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). failure to note that open primaries would not apply The to presidential elections or non-partisan elections is not a fatal omission, as it does not render the description fraudulent or misleading, regarding particularly the in light description. The 17 of the accompanying Opponents object notice that the description fails implementing to completely Proposition 121. describe Section the effects 19-102(A), of 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. description Finally, contains the Opponents impermissible protest argument and that the 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). those accompanying other Although the summary here like 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 18 misleading information in extraneous short titles on petition sheets). IV. ¶29 the Various arguments have been made to this Court whether proposed top two primary would be detrimental as a matter of public policy. misdirected. desirable or instead These arguments are 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

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