Judge rejects blockade of Arizona's open primary initiative, but legal battle continues

PHOENIX (AZFamily) – A Maricopa County Superior Court judge ruled Thursday that votes can be counted for Proposition 140, the ballot that asks voters whether Arizona should move to an open primary system.

The Make Elections Fair Arizona Act has been legally challenged in recent weeks, even though ballots had already been printed.

Judge Frank Moskowitz of the Maricopa County Superior Court ruled that the ballots can be counted, even though opponents said they would take the fight to the Arizona Supreme Court. The judge himself acknowledged, however, that there was evidence that the 37,657 disputed signatures were duplicates.

While he says there is no authority requiring challenges to be completed before ballots are printed, there is legal precedent that opponents ran out of time, so Moskowitz is dismissing the case.

But that's not all. Moskowitz also noted that other judges using the state's counting method “double counted” invalid signatures to bring the number below the threshold required for votes.

“The Court also finds that the 'double counting' of invalid signatures in this case increases the constitutional minimum threshold of valid signatures from '15%' to 15.2%. This is another reason why the statutory 'double counting' of invalid signatures in this case is unconstitutional,” Moskowitz wrote in his ruling.

Moskowitz also says opponents would have no legal basis to ask election officials not to count the votes if the Arizona Supreme Court rules in their favor.

Opponents of Prop 140 were not happy.

“Today, he issued a ruling that brought about this result and finds that the statutory method for determining the number of valid signatures for ballot initiatives is now unconstitutional,” said Scot Mussi, president of the Arizona Free Enterprise Club. “We are confident that after carefully reviewing the facts, the ruling and the court record, the Arizona Supreme Court will again overturn this outrageous ruling by Judge Moskowitz and prohibit the counting of Prop 140.”

In mid-August, Moskowitz decided that enough signatures had been collected for the ballot proposal, but declared several thousand signatures invalid because they were considered duplicates.

After an appeal, the state Supreme Court allowed the lawsuit to proceed, even though the deadline for printing the ballots had already passed.

For the bill to appear on this year's ballot, a minimum of 383,923 valid signatures were required. The total number of valid signatures is 409,474, a decrease of about 30% from the original nearly 584,124 signatures.

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