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Arizona Supreme Court Upholds ‘Top 2’ Initiative

by Shawn M. Griffiths, published

The Arizona Supreme Court ruled in favor of an open primary initiative on Thursday, which was the final obstacle advocates needed to overcome to see Proposition 121 on the statewide general election ballot. Voters now have an opportunity to decide what kind of electoral system they want in Arizona.

The Open Election/Open Government campaign filed a petition with over 365,000 signatures on July 5th to qualify the initiative for the November ballot. However, the Save Our Vote campaign challenged the validity of several of these signatures. They argued that 69 of the over 700 petition circulators failed to meet eligibility requirements. Judge John Rea of the Maricopa Superior Court ruled that three of the gatherers were ineligible and the signatures they gathered were invalid. However, he added that there was no evidence of intentional wrong doing in the collection of the signatures.

The battle to get the Open Elections/Open Government initiative, also referred to as the “Top 2” initiative, on the ballot was a tough fight for supporters of non-partisan, open primaries. The initiative faced a number of legal challenges, but advocates were determined to let voters decide the future of elections in Arizona. The state’s Supreme Court was the final hope opponents of the proposition had to keep it off the ballot.

Paul Johnson, Chairman of the Open Elections/Open Government campaign, stated:

“Five times now, we have been forced to go to court to defend the rights of Arizona voters to vote on this important amendment.The political bosses and lobbyists were determined to stop us because they knew the best way to defeat Open Elections/Open Government initiative was to block it from going to the ballot. But finally, it’s time to let the voters decide.”

Dr. Ted Downing, professor at the University of Arizona and a leading advocate of the “Top 2” initiative, was asked Thursday on the Buck Master Show why the current electoral system in Arizona needs to change.

“The problem is people are expressing some kind of dissatisfaction with government,” Dr. Downing replied. “Specifically they feel that government doesn’t express the consent of the governed.”

He mentioned that whether you look at the Tea Party Movement or Occupy Wall Street there is a common theme between the two, in which a general dissatisfaction with government is evident.

Opponents of the “Top 2” proposition argue that non-partisan, open primaries don’t work. Bruce Ash, member of the RNC, countered Dr. Downing’s assertion that such a system would alleviate voter discontent by claiming that it would only cause further polarization. He added that non-partisan, open primaries violate the U.S. Constitution because they doesn’t guarantee that the ballot will feature candidates from both parties and that this will hinder the electorate’s ability to choose the candidate they want.

“Opponents argue that the ‘Top 2’ open primary system is unconstitutional because it precludes third party voters from casting a ballot for their candidates of choice,” Ash remarked.

The problem with this argument, as Dr. Downing was quick to point out, is that political parties are not mentioned in the Constitution. In a primary system where the top two candidates, regardless of partisan affiliation, move on to the general election, people can feel like they have truly given consent. It would strengthen the vote of the majority while protecting the vote of the minority.

“In the U.S. Constitution and in our system of government, it is not one party one vote. It is one person one vote.”

One election that was brought up during the debate between Dr. Downing and Mr. Ash was a special election in 1989 for the Louisiana House seat in District 89. Two Republicans, John Spier Treen and David Duke, were pitted against each other in the general election. David Duke was a known member of the Ku Klux Klan. He won the election, and Mr. Ash said it would be unfortunate if voters had to choose between two David Duke like candidates in what he calls a “jungle election.”

The difference between the electoral system in Louisiana and the one proposed by Dr. Downing and other advocates of Proposition 121 is that, in Louisiana, a candidate could win the election in the primary if they secure over 50% of the vote, which is not the system being proposed in Arizona. The “Top 2” initiative was modeled after how municipal elections are already conducted in the state.

Opponents of non-partisan, open primaries want to scare people into thinking that we will see an increase in David Duke like candidates. They want to scare people into thinking that eliminating partisan primaries will lead to more corruption, more money from special interests, and a decrease in the quality of candidates. It will likely be part of a big campaign strategy to get people to vote against Proposition 121.

Mass discontent within the electorate over the current state of government is obviously an issue. Independent voters make up a significant portion of the voting age population. Many of these voters want electoral reform because they desire to have a system where the focus is choosing the individual rather than choosing the party. The future of elections in Arizona will be decided in less than sixty days.

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