Open primary backers ask court to put question on November ballot

PHOENIX -- Backers of an open primary initiative filed suit late Friday afternoon in a bid to get the measure on the November ballot.

In legal papers filed in Maricopa County Superior Court, attorneys for the Open Elections/Open Government Committee said Maricopa County officials improperly disqualified hundreds of signatures that should have been counted. They are asking Judge Robert Oberbillig to restore the names -- or, at least enough of them to put the measure over the top.

The campaign has a significant hurdle.

Backers submitted about 360,000 signatures. And they need only 259,213 to qualify.

Secretary of State Ken Bennett said, though, a review of a random sample showed that nearly 30 percent of the signatures were not valid. That rate, applied to the full list, left the effort 10,145 short.

But attorney Kim Demarchi who represents the committee said a review by campaign workers of the report from Maricopa County, where there greatest number of signatures were submitted, found numerous errors.

Even if Oberbillig sides with the campaign, though, that does not guarantee the measure a place on the ballot.

Hours after Demarchi went to court, a group opposed to the open primary filed its own lawsuit seeking to even further reduce the number of signatures county officials verified as accurate in a bid to ensure that the initiative stays off the ballot.

Attorney Michael Liburdi representing Save Our Vote claims that several petition circulators are convicted felons. That would make all the signatures they gathered invalid.

That could make a significant dent.

Liburdi claims that these felons circulated 518 of the petition sheets. With each sheet having up to 25 signatures, that alone could void nearly 13,000 signatures.

He also claims other irregularities.

The initiative would scrap the current method of nominating candidates for office through partisan races in favor of a wide open primary, including all candidates from all parties, with the top two facing off in the general election. This would affect current partisan races for statewide, legislative and county supervisor seats as well as Tucson city elections, the only state with partisan council and mayoral races.

In the end, the fate of the measure could come down to whose legal arguments are more persuasive.

Demarchi, in her lawsuit, said county election workers had disqualified 3,214 signatures in their sample on the grounds they could not locate a record of voter registration.

"Of these signatures, the committee was able to find 345 of those individuals in the county's voter file,' Demarchi wrote.

The attorney also said it was wrong to disqualify another 89 names because the address listed was invalid. She said these were "scrivner's errors' like putting two digits in the wrong order. And she disputed the conclusion by county election workers that 20 other signatures were illegible.

But Maricopa County Elections Director Karen Osborne said the challenge will fail because her staffers did their jobs properly.

More to the point, Osborne said that campaign workers never actually came to her office to look at the actual signatures on file on voter registrations, the signatures her staffers had to compare with those on the petitions.

She said challengers are instead making their claims based on finding names in the voter registration database. Osborne said, though, that does not mean a match between the petitions and the actual voter registration cards.

Campaign spokesman Joe Yuhas countered there is evidence that the county struck otherwise legitimate signatures.

"We've got statements from people who said they signed the petitions,' Yuhas said. And he said the names were legible enough for campaign workers to track these people down to get those statements.

At issue are 736 names the committee wants restored to the sample determined valid. That number could be enough.

By law, each county reviews only 5 percent of the signatures submitted.

That means each name struck from the list extrapolates out to 20 voters. Putting those 736 names back would add 14,720 to the final tally, putting it over the qualifying line.

And if those arguments fail, Demarchi has a fallback position. She contends that the whole concept of verifying whether an initiative qualifies for the ballot using just a 5 percent sample is unconstitutional.

Oberbillig is set to hear arguments in her claim Tuesday. Maricopa County Superior Court Arthur Anderson, who is assigned to the case filed by Liburdi, has not yet set a hearing.

And whoever loses in both cases is likely to the state Supreme Court.

A final ruling needs to come soon.

Election officials are supposed to start printing the publicity pamphlet explaining all the ballot measures next week. And the counties will start printing their ballots soon after.

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