By Howard Fischer
Capitol Media Services
PHOENIX -- Attorney General Kris Mayes is weighing in against Republican lawmakers over how they are seeking to describe two ballot measures to voters.
In one legal filing, Mayes contends the GOP-controlled Legislative Council is trying to put "a thumb on the scale'' by using the words "unborn human being'' in its summary of Proposition 139. That is the initiative that would enshrine a right to abortion in the Arizona Constitution.
Mayes also has filed a legal brief challenging the way the council wants to explain Proposition 140.
She said the main provision of that, if approved in November, would automatically eliminate partisan primaries. But in her legal filings, Mayes said the lawmakers chose instead to emphasize in the first substantive paragraph something that is only a possibility if the measure passes: creating a system of ranked-choice voting for the general election.
"By describing the initiative's provisions regarding voter ranking at the outset and implying they are mandatory, the Legislative Council's analysis injects the contentious topic of voter ranking into an already controversial measure,'' she said.
All this comes as both of these issues remain legally unresolved.
A trial judge already has rejected the use of the phrase "unborn human being,'' directing the council to reword it. But an attorney for the lawmakers is now seeking Supreme Court review.
No date has been set by the justices to hear that issue.
In the case of the open primary initiative, a hearing on the wording has been scheduled for this coming week in front of Maricopa County Superior Court Judge Melissa Julian.
While the subjects of the two measures are vastly different, the common thread in the filings by Mayes is her contention that the Republican-dominated council is acting in a way to improperly influence voters.
Arizona law requires the council to prepare "impartial'' analysis of all ballot measures. These are combined into a pamphlet that is mailed to the homes of the more than 4 million registered voters.
Proponents of both measures already have filed their own lawsuits challenging the summaries. But the briefs filed by Mayes could add a bit of legal heft to those arguments.
On Proposition 139, attorneys for the council argue the explanation is fair, if for no other reason than it used the phrase "unborn human being'' in one place when describing the current law that bans abortion after 15 weeks and "fetus'' in explaining the initiative which would allow the procedure without state interference through fetal viability, with exceptions beyond that allowed to preserve the life or physical or mental health of the mother.
Lawmakers took the position that both terms are "charged depending on which side you're on,'' saying including both was "balancing the two.'' Mayes disagreed.
"The phrase 'unborn human being' necessarily reflects a clear philosophical position about fetal personhood -- that is, a fertilized ovum developing during pregnancy is a 'human being,' no less so because it is 'unborn,' '' she said.
"By contrast, the word 'fetus' does not reflect any philosophical position about when life begins or when potential human life should be considered a person,'' Mayes said. " `Fetus' is a clinical term that describes a particular phase of development in a pregnancy, with no other meaning or position inherently baked in.''
And she scoffed at the claim that using both terms made it OK.
Consider, Mayes said, a ballot initiative that would provide additional government assistance to the unemployed, with the council referring to the recipients in one place as "lazy vagabonds'' and as "needy families'' in the other.
"Dueling partisan terms do not together make an impartial analysis,'' she said.
The attorney general's disagreement with the way the council described the open primary measure has a different basis. It comes down not so much to what the council said but the order they said it.
What is clear, said Mayes, is approval of Proposition 140 would set up a system where all candidates from all parties ran in a single primary, with voting available to all regardless of registration status.
She said, however, that the first point in the council's description is what would happen after the primary.
It would leave it to the Legislature to decide how many advance to the general election. That could be as few as two, in which case it would be a head-to-head fight.
But the initiative also allows -- but does not require -- the Legislature to have up to the top five vote-getters in the primary go on to the general election. And if that happens, then the winner would be chosen through a controversial system where voters rank their choices in order, a process that could require multiple steps until one person emerged with at least 50% of the vote.
"The Legislative Council's analysis omits the significant contextural information that voter rankings might never come to pass,'' Mayes said. Instead, it says -- even before explaining open primaries -- that the initiative would permit voter rankings.
"Placing the issue of voter rankings in the first analytical paragraph is rhetorical strategy that is not impartial,'' she wrote. "The analysis defies all rules of writing to give voter rankings top billing, conveying that their implementation is the key issue for decision.''
Mayes, in her legal brief, is not claiming bias by the Republican-controlled Legislature, But she noted for the court that the lawmakers already have taken a position on the whole issue, putting their own plan on the ballot as Proposition 133 that would constitutionally ban open primaries by guaranteeing each party gets to place candidates on the general election ballot.
Richie Taylor, Mayes' press aide, defended the office getting involved in the legal disputes.
"The attorney general believes it is critically important for Arizonans to receive fair and impartial descriptions of ballot measures,'' he said. "These briefs were filed in support of that goal.''
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