Arizona Top-Two Primary Initiative, Proposition 121 (2012)

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"Open Government Act"
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Referred by:Arizona Open Government Coalition
Topic:Administration of government
Status:Under litigation

Editor's note: The following measure was found to have insufficient signatures to be placed on the ballot. However, it is under litigation, thus the measure still has a chance to make the ballot.

The Arizona "Open Government Act" Initiative may be on the November 6, 2012 general election ballot in the state of Arizona as an initiated constitutional amendment.

The measure would implement a top-two style open primary system. In a top-two open primary, candidates for a government position run on the same primary ballot regardless of party affiliation. All registered voters are then able to cast their vote for the candidate of their choice. The two candidates with the most votes are then placed on the November general election ballot, regardless of party affiliation. The proposal was introduced by former Phoenix Mayor Paul Johnson.[1][2]

The measure was filed with the Arizona Secretary of State on September 27, 2011.[3]


The following is information obtained from the supporting side of the measure:

  • The Arizona Open Government Coalition is the group behind the measure.[4] The group is led by former Phoenix Mayor Paul Johnson.[5]
  • According to Johnson, about a third of state residents are not registered with either the Democratic or Republican party. There are now more independents in the state than Democrats, Johnson says.[6]
    • Johnson also stated that the 2012 initiative “is about trying to change the outcomes so that we end up with a more reasoned debate and more people are included in the process."[7]



  • The main opposition to the measure is the group Save Our Vote.[8]
    • The group is being led by Maricopa County Attorney Bill Montgomery.[8]


  • On June 7, 2012, the Arizona Chamber of Commerce’s public policy committee voted to recommend that the full chamber board oppose the measure.[9]
  • According to Arizona Republic columnist Robert Robb, in a column published on July 11, 2012, "...the two-top primary will probably prove another disappointing attempt to change election outcomes by changing the rules. There's really no substitute for better candidates running better campaigns."[10]


2012 measure lawsuits
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See also: List of ballot measure lawsuits in 2012

Maricopa County Court Case

On July 23, 2012, a lawsuit was filed with Maricopa County Superior court aimed at blocking the measure from the ballot. According to reports, the lawsuit against the measure was filed by opponents of the measure, who are represented by Attorney Michael Liburdi, who claims the initiative has "a legion of unintended consequences." Liburdi continued by saying that the proposal violates the state single-subject rule.[11]

Initiative proponents' campaign spokesman Joe Yuhas said thought the lawsuit would fail because the residents who signed the petition are entitled to have a say on the measure.

According to reports, arguments were heard during the week of July 30, 2012.[12]

On August 6, 2012, the court ruled that the measure should not be placed on the ballot because a provision in the measure violates the state's single-subject law.[13]

Judge Mark Brain stated that there was no reason why a prohibition on public funding for party activities should be included in the initiative.

According to reports, supporters of the initiative, The Open Government Committee, appealed to the Arizona Supreme Court to overturn the ruling on August 7, 2012. On August 17, 2012, the high court ruled, without comment, that the measure be placed on the ballot, if enough signatures were found to be collected by the petition drive.[14][15]

Editor's Note: Court case name and link were not immediately posted by news reports.

Open Government Committee v. Ken Bennett

On August 24, 2012, a lawsuit was filed by the Open Government Committee regarding Arizona Secretary of State Ken Bennett's office disqualifying more than 100,000 signatures on initiative petitions that lead to the measure's exclusion from the 2012 ballot.

Supporters of the measure stated that the secretary's office used an incorrect formula to calculate the results of the random sample and that Maricopa County officials invalidated signatures that should have been counted.

A hearing was scheduled for August 28, 2012.

The case docket can be found here.[16]

A counter lawsuit was filed by opponents of the measure asking for the measure to be kept off of the ballot. The court case can be found here.

According to reports Maricopa County Superior Court Judge John Rea ruled on August 31, 2012 that the measure be placed on the ballot.[17]

However, according to reports, challengers stated they wanted another two hours to make their case in court.

Attorney Mike Liburdi told the Arizona Supreme Court on September 4, 2012 that he was "cut off" by Maricopa County Superior Court Judge John Rea in the middle of his arguments.

According to Liburdi, "Given the magnitude of the controversy -- a proposed constitutional amendment that will fundamentally change the manner in which public officers are elected -- it was unreasonable and an abuse of discretion not to provide (challengers) with more time to present their case."[18]

The Arizona Supreme Court made a ruling on the case on September 7, 2012 allowing the measure to appear on the November 6, 2012 ballot.[19]


Polls, 2012 ballot measures
  • During the days of October 4-11, 2011, a poll was conducted by Arizona State University’s Morrison Institute for Public Policy concerning the topic of nonpartisan ballots in primaries. The survey asked state state residents if they favored a nonpartisan primary ballot system. The results of the poll follow. The margin of error was plus or minus 4 percentage points.[20]
Date of Poll Pollster In favor Opposed Undecided Number polled
Oct. 4-11, 2011 Morrison Institute for Public Policy 58% 33% 9% 600

Path to the ballot

See also: Arizona signature requirements

In order to qualify for the 2012 statewide ballot, supporters were required to collect a minimum of 259,213 valid petition signatures by July 5, 2012.

According to reports, on June 4, 2012, supporters of the initiative stated that they had collected enough signatures to make the ballot. Reports stated that petition drive organizers had collected more than 280,000 signatures from state voters.[21]

Although enough signatures were allegedly collected, supporters said at the time that they would keep collecting them leading up to the deadline in order to ensure that they had room for error.[22]

On the day of the deadline, July 5, supporters turned in signatures to the Arizona Secretary of State's office. According to reports, however, state elections officials checked 5 percent of the signatures on the submitted petitions and found 30 percent of signatures checked were invalid. Using that formula, more than 100,000 signatures were deemed invalid, leaving the initiative drive short of signatures to be placed on the ballot.[23]

However, a court ruling overturned this finding, allowing the measure to be placed on the ballot.

See also

Additional reading


  1., "Open Government Committee launches top-two open primary ballot initiative in Arizona", August 15, 2011
  2. Business Journals, "Paul Johnson Ballot iniative...", Retrieved October 3, 2011
  3. Associated Press,"Initiative would switch Arizona primary to 'top 2'," September 27, 2011
  4. My Fox Phoenix, "Arizona Group Wants to Abolish Party Primaries", August 5, 2011
  5. The Arizona Republic,"Group seeks single primary to counter Ariz. party extremists," August 4, 2011
  6. Arizona Daily Star, "Arizona initiative would put all candidates in one primary", September 28, 2011
  7. Tuscon Citizen, "Push is on for open primary in Arizona", May 9, 2012
  8. 8.0 8.1, "Maricopa County Attorney opposes open primary initiative", September 5, 2012
  9. Arizona Capitol Times, "Vote of no confidence on two ballot measures", June 8, 2012
  10. Arizona Central, "'Top-2 primary' no magic pill for moderation", July 11, 2012
  11. East Valley Tribune, "Open primary foes file lawsuit to keep measure off Arizona ballot", July 16, 2012
  12. East Valley Tribune, "Judge to hear arguments in Arizona open primary initiative", July 25, 2012
  13. The Voting News, "Judge blocks top-two initiative from Arizona ballot", August 7, 2012
  14. Arizona Capitol Times, "Top-two primary supporters appeal to high court", August 8, 2012
  15. Tri Valley Central, "AZ high court puts ‘top two’ initiative back on Nov. ballot", August 21, 2012
  16. Arizona Daily Sun, "Initiative backers sue for spot on Arizona ballot", August 24, 2012
  17. Arizona Republic, "Judge OKs top-2 primary plan", August 31, 2012
  18. Arizona Daily Sun, "Open primary opponents want 2 more hours", September 5, 2012
  19. Arizona Daily Star, "Open-primaries measure to be on Arizona ballot", September 7, 2012
  20. Cronkite News Online, "Poll: More than half of Arizonans support a nonpartisan ballot in primaries", November 14, 2011
  21., "Open elections initiative appears headed to ballot", June 4, 2012
  22. Arizona Republic, "Backers: 2 Arizona ballot initiatives have enough signatures", June 6, 2012
  23. The Daily Courier, "Petitions filed for 2 Arizona ballot measures", July 5, 2012