Arizona Legislature defends ‘misleading’ ballot initiative analysis

PHOENIX (CN) — A Maricopa County judge will decide Monday whether the Arizona Legislature’s description of an open primary ballot initiative is misleading to voters.

In a Friday afternoon hearing in Phoenix, the state argued that so long as everything in the Legislature's analysis of an initiative proposing a system involving open primary elections and ranked choice voting is true, it adheres to election law. 

“Simply because someone could do it in a better way doesn’t violate the statute,” state defense attorney Brunn Roysden told Maricopa County Judge Melissa Julian. 

Andrew Pappas, representing political action committee Make Elections Fair Arizona — which sponsored the initiative — countered that the analysis must also be “clear and concise.”

The initiative — which will be on the ballot in November — proposes open primary elections rather than separate primaries for the Republican and Democratic parties, and allows for the general election to be decided by ranked choice voting only if the Legislature or the Secretary of State decides that more than two candidates should advance to the general election,

In its analysis of the initiative, the legislative council first mentions the potentiality of ranked choice voting before describing the required open primary. 

While Roysden argued that the order of topics was changed for clarity’s sake, Pappas said it had the opposite effect.

“Even when parts of an analysis are accurate, they can nevertheless be misleading,” he said. 

Make Elections Fair sued the legislative council in July, requesting that it rewrite the analysis to better reflect its intention. 

In the months leading up to the general election, Arizona voters will receive by mail a publicity pamphlet more than 200 pages thick that describes each initiative on the November ballot. The descriptions are written by the legislative council — a committee of lawmakers led by House Speaker Ben Toma and Senate President Warren Petersen tasked with providing an impartial analysis of each measure to help voters make informed decisions. 

In its analysis, the council mentions ranked choice voting in paragraph number one, which ends with “see also paragraph 4 below” in parenthesis. Paragraph four describes the circumstances for ranked choice voting, while paragraphs two and three describe open primaries. 

Pappas said the initial mention of ranked choice voting and the cross reference to paragraph four encourages readers to skip the information about open primaries and focus on ranked choice. 

“A rhetorical strategy is being deployed here, designed to dissuade voters,” he said.

But both Roysden and Julian agreed that nothing would stop a reader from returning their eyes to the second and third paragraphs. 

Roysden likened the case to a consumer fraud case to contrast from important information being buried in fine print. 

“I don’t think it comes close to that,” he said. “Simply the placement of these two lines with a cross reference can’t say that it's burying the lede.” 

Even if a voter focused only on ranked choice voting, Roysden said, that would be a valid reason to vote for or against the measure as a whole, and wouldn’t be the result of manipulation or distraction. 

“You’re making an all-or-nothing decision,” he said. 

While the analysis remains technically true, Make Elections Fair says the decision to mention ranked choice voting first intentionally distracts from the larger goal and focuses voters’ attention on the more controversial topic, even though it may not ever come into play. 

“It’s clearly arbitrary and argumentative,” treasurer Chuck Coughlin said in a phone call with Courthouse News. 

The initiative allows for the Legislature, the secretary of state, or the people, through a future ballot initiative, to decide between two and five how many candidates will advance from an open primary to a general election in state and federal races. If three or more advance, only then does the initiative call for ranked choice voting. 

Because both the Legislature and the people would most likely oppose ranked choice voting and therefore write into law that only two candidates will advance, the implication that a vote for the initiative would immediately lead to choice voting is dishonest, Coughlin said. 

Pappas also argued Friday that saying the initiative “allows” ranked choice voting may be misleading in and of itself, because whether the state constitution allows the practice is still an open legal question. The initiative specifically states that it “does not prohibit” the practice. If it's later decided that the constitution prohibits it, the statute wouldn’t conflict with that. And the use of “allows” suggests it would, he said. 

“I just think that’s slicing the salami pretty thin,” Roysden replied, dismissing the argument. He said the legislative council has no position on whether the constitution allows for ranked choice voting, and would prefer not to be dragged into that legal argument. 

Julian said she will file a decision by the end of the day Monday. 

Follow @JournalistJoeAZ

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