The Honorable Betsy Bayless December 3 , 1999 Arizona Secretary of State No. I99-025 (R99-049)History of Presidential Preference Elections in Arizona.
In 1992, the Legislature established a "presidential preference primary election." 1992 Ariz. Sess. Laws ch. 255 (codified as A.R.S. 16-241 to -243). This election is to "give qualified electors the opportunity to express their preference for the presidential candidate of the political party indicated as their preference by the record of their registration." A.R.S. 16-241(A). In 1995, the Legislature substantially amended the laws governing this new election, changing the date, adding many procedures, and dropping the word "primary" from the title, thus renaming the election the "presidential preference election." 1995 Ariz. Sess. Laws ch. 248.
The presidential preference election is not denominated a "primary" election and, in fact, it differs significantly from a primary election. Unlike a primary election, the presidential preference election does not determine which candidate is placed on the general election ballot, nor do all parties that will have candidates on the general election ballot participate in Arizona's presidential preference election. Indeed, in 1996, Arizona's first presidential preference election, only one eligible party participated.(4) In addition, the presidential preference election is on a different date, compare A.R.S. 16-241(A) with A.R.S. 16-201, and no other election may appear on the same ballot as the presidential preference election. A.R.S. 16-241(A). The Legislature has also established specific procedures for a presidential preference election regarding such matters as candidate qualifications for the ballot, party eligibility, early voting, ballot format, and polling places. See A.R.S. 16-241 through-250. Other laws governing elections apply if they are not in conflict with the statutory provisions for the presidential preference election. A.R.S. 16-241(C).
While the statutory provisions for the presidential preference election allow voters to express a preference for their party's presidential candidate, the presidential preference election does not actually select delegates to the parties' national presidential nomination conventions. Instead, each party selects convention delegates as provided by its bylaws. A.R.S. 16-243(A). The delegates of parties participating in Arizona's presidential preference election are directed by the statute to use "best efforts" at the convention for their party's presidential candidate who received the greatest number of votes in Arizona's presidential preference election. A.R.S. 16-243(B).(5)
Arizona's constitution requires a primary election for the nomination of candidates "for all elective State, county, and city offices, including candidates for United States Senator and for Representative in Congress." Ariz. Const. art. VII, 10. While the primary election requirement specifies most political offices in Arizona, it makes no mention of, and therefore excludes, the Office of President of the United States. See Pima County v.Heinfeld, 134 Ariz. 133, 134, 654 P.2d 281, 282 (1982) (the expression of one or more items in a class indicates an intent to exclude items of the same class that are not expressed).
... the Legislature retained the statutory language that says that the presidential preference election is for the purpose of giving voters the opportunity to express their preference "for the presidential candidate of the political party indicated as their preference by the record of their registration." A.R.S. 16-241(A) (emphasis added).
... the presidential preference election is to be "conducted and canvassed" according to the laws governing primary elections unless "otherwise provided" by the statutes governing the presidential preference election, A.R.S. 16-241(C), the 1999 amendments arguably created some ambiguity on this issue.
When interpreting statutes, courts begin with the statutory language and may also consider the statute's "context, subject matter, historical background, effects, consequences, spirit and purpose." Mail Boxes, Etc. v. Indus. Comm'n, 181 Ariz. 119, 122, 888 P.2d 777, 780 (1995).
... extending the open primary legislation to the presidential preference election would ignore the many distinctions the Legislature has maintained differentiating presidential preference elections from primaries. For example, these elections have different dates, different procedures for qualifying for the ballot, and different ballot requirements. Compare A.R.S. 16-241(A) with A.R.S. 16-201 (dates); A.R.S. 16-242 with A.R.S. 16-311 (qualifying for ballot); A.R.S. 16-245 with A.R.S. 16-462 , -464 (ballots). When the Legislature has wanted to make changes to the presidential preference statutes, it has expressly done so. See 1995 Ariz. Sess. Laws ch. 248. It did not do so in the open primary legislation.
2. The Legislature has also established a nomination process for general election candidates that does not involve the primary election. See A.R.S. 16-341 (nominations "otherwise than by primary"). There are also non-partisan primary elections for some local offices, such as city council. See A.R.S. 9-821.01 (city and town elections).
4. .... In Arizona State Democratic Committee v. Hull, No. CV96-00909 (Maricopa County Super. Ct., February 1, 1996), the court held that presidential preference elections are different from primary elections and that political parties can choose whether or not to participate in them.
5. There are limits to a State's ability to impose requirements on party delegates that would violate party rules. In Democratic Party of the United States v. Wisconsin, 450 U.S. 107 (1981), the Supreme Court held that Wisconsin could not bind party delegates to honor the results of an open presidential primary when doing so violated national party rules.
A.R.S. 16-243. National convention delegates; pledged support to candidates
A. The selection of delegates to the political party national conventions shall be as provided in the bylaws of each state party.
B. Each delegate to the national convention shall use his best efforts at the convention for theparty's presidential nominee candidate who received the greatest number of votes in the presidential preference election until the candidate is nominated for the office of president of the United States by the convention, until the candidate releases the delegate from his obligation, until a candidate withdraws from the race or until one convention nominating ballot has been taken. After a candidate is nominated, withdraws from the race, delegates are released or one ballot is taken, each delegate is free to vote as he chooses, and no rule may be adopted by a delegation requiring the delegation to vote as a body or causing the vote of any delegate to go uncounted or unreported.