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Judge on open primary challenge: 'They would say that it sucked'
8/3/2012 2:08:00 PM
By Howard Fischer
PHOENIX -- A state judge on Friday questioned efforts of foes of an open primary system to keep it from ever going to voters.
The opponents contend that the proposed constitutional amendment illegally deals with too many disparate subjects. Attorney Mike Liburdi said that makes putting it on the November ballot improper.
But during a hearing Friday, Maricopa County Superior Court Judge Mark Brain suggested he was not buying all of Liburdi's arguments that the measure, if approved, would change too many unrelated things.
Brain also was skeptical of Liburdi's contention that a 100-word description of the measure, included on each petition, did not comply with legal requirements that it be solely a factual description of what would change if approved.
The attorney argued that proponents improperly used the description to convince people to sign. But Brain told Liburdi that under his interpretation of the law, there is no way anyone could accurately describe a ballot measure within 100 words.
Liburdi started to craft an answer when Brain interjected.
"They would say that it sucked,' the judge joshed.
Humor aside, Brain promised a ruling on the case early this coming week. Both sides acknowledged, though, that whoever loses is certain to seek review by the Arizona Supreme Court.
Hanging in the balance is whether voters get to decide whether to approve what would be a major change in how they elect state officers, legislators and county supervisors.
In essence, the initiative would have all candidates of any -- or no -- partisan affiliation run against each other in a single primary. Then the top two vote-getters would face off in the general election, again, regardless of party.
The measure initially was fought largely by Republicans who currently dominate Arizona politics. But on Friday, Brain agreed to a request to add two Democratic officials to the legal challenge.
Rep. Steve Gallardo of Phoenix said his concern is that the change could results in fewer Hispanics being elected.
Gallardo lives in a heavily Democratic and largely Hispanic district. And he said most Hispanics are registered as Democrats.
He said that pretty much ensures that the Democratic nominees will be either Hispanic or at least candidates that Hispanics think represent their interests. And given the Democratic registration edge in the district, that makes the Republican nominees pretty much irrelevant by the time the general election comes around.
Under this proposal, he said a single non-Hispanic candidate might face off in the primary against four Hispanics. Gallardo said if the Hispanics split the ethnic vote, that means only one might survive to reach the general election.
All that, however, is legally irrelevant to the court fight over whether the issue gets on the ballot in the first place.
Liburdi said there would be no violation of prohibitions against constitutional amendments dealing with more than one subject if the initiative simply converted all elections in the state to nonpartisan races. That's the system that exists for school boards and most cities.
But he said this measure lets candidates spell out the party with which they want to be identified. That, said Liburdi, is a separate issue from open primaries.
Brain appeared unimpressed by that argument.
"They can do that right now,' the judge said of candidates.
Liburdi then argued that if the initiative passes it will nullify a provision of the state's Citizens Clean Elections Act which governs how public money is doled out to candidates in certain partisan primaries. That, Liburdi said, is not only another totally different issue than open primaries but also would force lawmakers to alter the 1998 voter-approved law creating public funding.
But the judge appeared more inclined to accept the arguments of Kim Demarchi who represents initiative organizers that it's not that complicated. She said if the measure passes, partisan primaries go away and the provision in the Clean Elections Act automatically becomes obsolete.
Brain appeared a bit more interested in the fact that approval of the initiative would do away with the partisan election of precinct committeemen and committeewomen who by definition are both public officials as well as representatives of their own respective political parties. Liburdi said that issue should be a separate ballot question.
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