Arizona Supreme Court keeps sweeping election ballot measure in limbo

A lower court judge determined it could appear on the November ballot, but the Supreme Court says he must show his math

By: and - August 25, 2022 8:43 pm

Supporters of the Arizona Free Elections Act a press conference on July 7, 2022, near the state Capitol. The initiative measure would make sweeping changes to Arizona’s election and campaign finance laws if voters approve it. Photo by Jim Small | Arizona Mirror

A ballot initiative that would overhaul Arizona election and campaign finance laws is tentatively approved for voters to consider in the November election — but that could change Friday if the Arizona Supreme Court doesn’t like how a trial judge counted the initiative’s signatures.

Nearly two hours after the 5 p.m. Thursday deadline that Maricopa County elections officials said was when November ballots needed to be sent to the printer, the Supreme Court kept the initiative in limbo.


Thursday morning, Maricopa County Superior Court Judge Joseph Mikitish — following the directions from a Wednesday evening Supreme Court ruling that allowed some categories of signatures to stand and said others should be disqualified — determined that the Arizona Fair Elections Act had 239,926 valid signatures.

That put it just 2,281 signatures above the threshold to appear on the November ballot.

The plaintiffs, led by the conservative Arizona Free Enterprise Club, appealed to the Supreme Court. The justices said they were “unable to verify the invalidity rate used by the trial court,” so they ordered Mikitish to show each of his calculations before 11 a.m. on Friday. 

The proponents and opponents of the ballot initiative then have until 1 p.m. to file arguments in support or opposition to the judge’s decision, and the Supreme Court will issue a final ruling later in the day.

Stacy Pearson, a spokeswoman for Arizonans for Fair Elections, which backs the initiative, said the organization was “happy to show our work, as requested.” 

Liberals saw the Supreme Court’s action Thursday as an ominous sign that the high court was looking for an excuse to keep the measure, which is opposed by Republicans and business groups, off the ballot.

“Rotten news in my opinion as the Team Ducey power play at the Governor’s stacked Supreme Court is underway,” former lobbyist Chris Herstam wrote on Twitter, referring to Gov. Doug Ducey and GOP lawmakers expanding the Supreme Court from five to seven justices in 2016. “Judge Mikitish keeps ruling Prop 210 should be on the ballot & the Ducey Supremes keep sending his ruling back to him.”

And Reginald Bolding, the top Democrat in the Arizona House of Representatives, said on social media that “(f)ar-right conservatives are pulling out all the stops trying to prevent this ballot initiative from going in front of voters.” 

The Arizona Fair Elections Act, which will be known as Proposition 210 if it winds up on the ballot, would make sweeping changes to Arizona’s election and campaign finance laws. 

Under the initiative, voter registrations would become automatic when people apply for a driver’s license or state ID. The Permanent Early Voter List — weakened by recent legislation that requires election officials to stop sending ballots to voters who’ve been inactive in multiple election cycles — would be restored, and mail-in ballots postmarked by Election Day would be counted, even if they arrive after the 7 p.m. deadline in place today. 

Pearson said the victory was a gain for voter enfranchisement across the state. She pointed to the measure’s protection of PEVL as proof, saying that Prop. 210 allows voters to remain on the rolls where they belong and not be kicked off if they decide not to participate in an election or two. 

“This makes sure voters who are registered to vote stay registered,” she said. 

Also included in the initiative’s myriad provisions are changes to campaign finance law. It drastically reduces the contributions individuals and political action committees can give to candidates. Current law allows contributions up to $6,250 for legislative, statewide, or city candidate campaigns, but the initiative reduces that number to $1,000 or $2,5000, depending on which office candidates are running for. 

At the same time, publicly financed candidates using the state’s Clean Elections system could receive twice as much money if Prop. 210 passes than they currently can. 

Prop. 210 also prohibits legislative audits of elections, like the so-called “audit” of the 2020 presential election results in Maricopa County, which was prompted by the baseless claim that fraud occurred. The extensively debunked claim has been forwarded by GOP politicians across the country, and has become a key tenet of campaigns in Arizona. 

Voters, Pearson said, are tired of hearing the 2020 election be endlessly rehashed. She expects they will welcome the protections afforded by Prop. 210, and said the majority of voters disagree with conspiracy-forwarding politicians. 

“The bulk of Democrats and Independents, and a segment of the Republicans, know that Joe Biden won. When those groups converge to make sure that ‘fraudit’ never happens again — that there are not people in green shirts spinning ballots around on Lazy Susan tables — when those folks get together and vote yes, we will have a significant margin,” she said. 

More than two thirds of independent voters in Arizona said they were opposed to the so-called “audit,” according to a poll conducted in May of last year. The vast majority of Democrats were also against it, and as much as 20% of Arizona Republicans agreed. 

Citizen initiatives and referendum efforts are also protected under Prop. 210. Future efforts by voters would be judged only on the number of signatures collected, not on their contents. And legal challenges to those signatures would be based on a lower standard of proof, not the exacting standard — known in legal terms as “strict compliance” — that GOP lawmakers created in recent years to make it easier to successfully remove measures from the ballot.

“This is good for democracy in Arizona,” Pearson said. “It ensures that our constitutional right to legislate ourselves is upheld.”

Barring an appeal – which faces a slim chance of being submitted on time, given the deadline is today at 5 p.m. — the initiative will make it onto the ballot in November. Supporters will now turn their efforts to ensuring voters are well-informed about what the initiative does in the 49 days left before they enter the ballot box to decide its fate. 


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Gloria Rebecca Gomez
Gloria Rebecca Gomez

Gloria Gomez joined the Arizona Mirror in August 2022. She graduated in 2022 with bachelor's degrees in journalism and political science, with a Spanish minor.

Jim Small
Jim Small

Jim Small is a native Arizonan and has covered state government, policy and politics since 2004, with a focus on investigative and in-depth policy reporting, first as a reporter for the Arizona Capitol Times, then as editor of the paper and its prestigious sister publications. He has also served as the editor and executive director of the Arizona Center for Investigative Reporting.