PHOENIX (CN) — A state judge ordered the Arizona Legislature to rewrite its description of a ballot initiative she said is misleading to voters because it selectively focuses on one part of the measure over another.
The initiative — which will be on the ballot in November — would establish open primary elections where each candidate, regardless of party, is on a single ballot, rather than separate primaries for Republicans and Democrats. The measure would also allow the general election to be decided by ranked choice voting only if the Legislature, the secretary of state or the people decide to do so.
In its analysis, which each registered voter will receive by mail to help fill out the lengthy ballot, the legislative council first mentions the possibility of the more-controversial ranked choice voting before describing the required open primary.
“The council’s analysis selectively emphasizes the initiative’s voter ranking provisions,” Maricopa County Judge Melissa Julian wrote in an order filed Tuesday morning. “In doing so, the analysis inaccurately suggests that its enactment would mandate the use of voter rankings to determine the winning candidate in all future elections.”
Instead, ranked choice voting would only be used if more than two candidates advance from the open primary to the general election; the Legislature would have the power to decide how many move forward. If the measure is approved and the Legislature doesn’t pass a law by the next election, the secretary of state would set the number of candidates to advance. Voters could also decide the number via another ballot initiative.
“The court’s emphasis on voter rankings without this significant contextual information renders the analysis misleading,” Julian concluded.
The first paragraph of the Legislature’s analysis says the initiative would “allow for the use of voter rankings at all elections,” and ends with a cross reference to the fourth paragraph, which further explains the circumstances for ranked choice voting. Julian found that the cross reference encourages the reader to skip over key provisions that provide proper context for the possibility of ranked choice voting.
“The court finds that this is a rhetorical strategy to dissuade voters from supporting the initiative by confusing when and how voter rankings would be used under the initiative and implying that its use would result in the unfair election of candidates who did not receive the highest number of the votes,” she wrote.
Legislative Republicans argued Friday that the order of facts listed is immaterial to the analysis' impartiality so long as each element is technically true.
“Even accurate statements can be misleading, argumentative, tinged with partisan coloring, or otherwise lack the impartiality,” Julian replied in her order. “This is particularly true where the analysis selectively emphasizes a particular initiative provision in a manner that would mislead voters about the impact it would have on existing laws.”
Make Elections Fair Arizona, the political action committee behind the initiative, sued the legislators in July, requesting that they rewrite the analysis to better reflect the measure’s main intention.
Chuck Coughlin, treasurer of the committee, said Friday that the description is especially misleading because of how unpopular ranked choice voting is in the state. Because the Legislature has both the ability and willpower to pass a law restricting any more than two candidates from advancing to a general election, it’s unlikely that ranked choice voting would ever come into play.
The lawmakers argued Friday that including voter rankings first is a logical choice because it is a “material change” that applies to all elections.
Julian rejected that argument, countering that a measure that simply “does not prohibit” voter rankings is not necessarily a material change. It’s also not the only provision that “applies to all elections,” she reasoned, so placing it at the top still defies logic.
Make Elections Fair Arizona also sued on the grounds that a line in the fourth paragraph of the analysis, setting the rules for when and how voter rankings can be used, improperly suggests that voter rankings would automatically take effect if the initiative passes. Julian rejected this argument, because the two sentences that precede it in the paragraph make clear that voter rankings would be used only when three or more candidates advance.
Julian gave the legislators until Aug. 29 to revise the analysis.
“We are hoping to avoid an appeal and have asked legislative leaders to accept our proposed amendments and move on,” Coughlin said in a text Monday night.
The defendants didn’t respond to a request for comment.
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