Save Our Vote v. bennett/open Government Committee Supporting C-03-2012

SUPREME COURT OF ARIZONA
En Banc

SAVE OUR VOTE, OPPOSING ) Arizona Supreme Court
C-03-2012, an unincorporated ) No. CV-12-0272-AP/EL
Arizona political committee, )
LISA GRAY, a qualified elector ) Maricopa County
and taxpayer of the State of ) Superior Court
Arizona, JAIME A. MOLERA, a ) No. CV2012-010717
qualified elector and taxpayer )
of the State of Arizona, BARRY )
HESS, a qualified elector and )
taxpayer of the State of Arizona, ) O P I N I O N
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. )
__________________________________)

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 Phoenix
By Michele L. Forney, Assistant Attorney General
Attorney for Ken Bennett

LEWIS AND ROCA LLP Phoenix
By Kimberly A. Demarchi
William G. Voit
Attorneys for Open Government Committee

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 Phoenix
AT THE GOLDWATER INSTITUTE
By Clint Bolick
Carrie Ann Sitren
Attorneys for Amicus Curiae Goldwater Institute

LAW OFFICE OF HARRY M. KRESKY New York, NY
By Harry M. Kresky

And

PIETZSCH, BONNETT & WOMACK, P.A. Phoenix
By Michael E. Pietzsch
Attorneys for Amici Curiae Committee for a Unified
Independent Party

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
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ARIZONA HOUSE OF REPRESENTATIVES Phoenix
By Peter A. Gentala

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. Proposition 121

would amend the Constitution to replace 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
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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.” 1912 Ariz. Sess. Laws, ch. 84 (1st Spec.

Sess.). 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. A.R.S.

§§ 16-301, -801, -804 (Supp. 2012). 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.

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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

nominees of other recognized parties. See id. § 16-501.2

¶5 Since statehood, the laws regarding primary elections

have also regulated the structure of recognized parties by

requiring them to elect “precinct committeemen.” 1912 Ariz.

Sess. Laws, ch. 84, § 32 (1st Spec. Sess.). 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 a party’s candidate dies or resigns before an

election, id. § 16-343, (2) receive funds contributed to 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.

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pay for the primary elections used to select precinct

committeemen and the party’s candidates for the general

election. See id. §§ 16-503, -511.

¶6 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.” Proposition 121, § 2(B) (2012). Under

this proposal, all candidates for an office, 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. See id.

¶7 The proposition would replace Article 7, Section 10 of

Arizona’s Constitution with a new Section 10 containing eight

subparts. See Ariz. Sec’y of State, 2012 Publicity Pamphlet 68-

69 (2012) (reproducing text of proposition), available at

http://www.azsos.gov/election/2012/Info/PubPamphlet/english/e-

book.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 a voter’s party affiliation; and it outlines

procedures for the top two primary. Proposition 121, § 3

(proposed Sections 10(A) – (C)). New Section 10(D) provides

that the number of voter signatures a candidate must obtain to
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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 on the ballot because it

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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” test to determine whether they violate the

separate amendment rule and concluded that most of 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 100-

word description on the signature sheets, the trial court

8

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 briefing, we issued an order reversing the trial

court’s judgment.3

II.

¶12 We review de novo whether a proposition complies with

the separate amendment rule. Ariz. Together, 214 Ariz. at 120

¶ 2, 149 P.3d at 744. “[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 speaking, . . . should stand or fall as a

whole.” McLaughlin v. Bennett, 225 Ariz. 351, 354 ¶ 8, 238 P.3d

619, 622 (2010) (second alteration in original) (internal

quotation marks omitted). 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 in Proposition 121 are topically

related. They concern whether political parties and their

candidates should be afforded favored treatment - through

taxpayer-funded partisan primaries, the provisions of laws or

regulations, or public funding - with regard to Arizona

elections. Cf. McLaughlin, 225 Ariz. at 354 ¶ 9, 238 P.3d at

622 (assuming that provisions regarding elections for public

office and union elections were topically related because each

pertained to secret ballots).

¶14 The common topicality of the provisions is not

undermined by the fact that the Supporters identify the

Proposition’s purpose as replacing 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 parties or party-affiliated voters in

election-related matters. Moreover, the favored status 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
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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 We turn to whether the provisions of Proposition 121

are sufficiently interrelated to comply with the separate

amendment rule. This rule does not require “that all components

of a provision be logically dependent on one another.” Ariz.

Together, 214 Ariz. at 122 ¶ 10, 149 P.3d at 746. 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)). Although these factors are not exclusive and

might not all apply in a particular case, they guide our

analysis. McLaughlin, 225 Ariz. at 354 n.2, ¶ 10, 238 P.3d at

622 n.2.

¶16 The provisions of Proposition 121 are not only

facially related, but also logically related. Section 10(G)

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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 candidates, or otherwise

participate in all elections.” This broad prohibition on public

funding of party activities logically embraces Section 10(C)’s

elimination of partisan primaries. If public monies cannot be

used to support a party’s 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 related to the Citizens Clean Elections

Commission. One provision would have prohibited public funding

of candidates’ political campaigns, thereby displacing

provisions of the Clean Elections Act that require such funding.

Id. at 246 ¶ 18, 99 P.3d at 575. Another provision would have

eliminated the statutorily 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. Id. at 245-46 ¶¶ 13, 19, 99 P.3d at

574-75. The Court found no facial relationship between these

provisions because they did not advance any “common purpose or
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principle.” Id. at 246 ¶ 20, 99 P.3d at 575. That is, the

candidate funding prohibition did not logically imply

eliminating the Commission’s funding dedicated to 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. Moreover, as noted, supra ¶ 5,

Arizona’s legislature has 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, §
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32 (1st Spec. Sess.). Finally, the provisions are

“qualitatively similar” in their effect on procedural or

substantive law. Replacing the partisan primary with an open

primary in which candidates and voters participate without

regard to party affiliation is qualitatively similar in its

effect to the broader provisions in Proposition 121 mandating a

level playing field regardless of party and barring public

funding for specified political party activities. 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
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means does not itself establish a violation of the separate

amendment rule. See Korte, 199 Ariz. at 178 ¶ 16, 16 P.3d at

205 (noting 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 most narrowly tailored means for

achieving identified goals, only that the provisions have a

sufficient common purpose or principle. See id. ¶ 15, 16 P.3d

at 205 (holding that “multifaceted approach” to amending

provisions in Article 10 regarding state trust lands did not

violate separate amendment rule). Nor does the fact that a

proposition, if adopted, would 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 121

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

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 Opponents argued that the 100-word description

violates § l9-102(A) because it (l) omits reference to the

exclusion of presidential and non-partisan elections, (2)

contains misleading statements as to its effects, and (3)

contains impermissible argument and advocacy.

¶26 Alleged errors in the form of initiative petitions are

reviewed for “substantial compliance.” Wilhelm v. Brewer, 219

Ariz. 45, 46 ¶ 2, 192 P.3d 404, 405 (2008). Descriptive

information included on petition signature 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). The

failure to note that open primaries would not apply to

presidential elections or non-partisan elections is not a fatal

omission, as it does not render the description fraudulent or

misleading, particularly in light of the accompanying notice

regarding the description. The Opponents object that the
17

description fails to completely describe the effects of

implementing Proposition 121. Section 19-102(A), 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. Finally, the Opponents protest that the

description contains “impermissible” argument and 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). Although the summary here – like

those accompanying other 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 misleading information in
18

extraneous short titles on petition sheets).

IV.

¶29 Various arguments have been made to this Court whether

the proposed top two primary would be desirable or instead

detrimental as a matter of public policy. These arguments are

misdirected. 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

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__________________________________
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.

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