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Three AZ cases before Supreme Court this term

Arizona will have a prominent presence in the U.S. Supreme Court term that began Oct. 1 with cases that will settle the issues of matching funds for Clean Elections candidates, tax breaks for donations for private school scholarships, and penalties for employers who knowingly hire illegal immigrants.

ASU law professor, Paul Bender, who will argue one of the cases said it is unusual for a state the size of Arizona to have so many significant cases in a single term.

“The reason is the Arizona Legislature is not the mainstream,” Bender said. “The Arizona Legislature passes legislation other states just don’t pass.”

The first Arizona case on the court’s docket is a challenge to the state’s program that provides dollar-for-dollar income tax breaks for donations to school tuition organizations, or STOs. Arguments are scheduled for Nov. 3.

The American Civil Liberties Union, which is representing several taxpayers, contends that the program is unconstitutional because most of the STOs are religious organizations that award scholarships for students to attend religious schools, which has the effect of the government advancing religion.

The state argues that the law that enables the STOs is written in neutral language, never mentions religion and supports the secular purposes of school choice and providing healthy competition for public schools.

Tim Keller, of the Institute for Justice, which intervened in the case on behalf of the Arizona School Choice Trust, said a favorable decision for his clients would provide legislatures more options in school reform.

“I think the Supreme Court will uphold this program,” Keller said. “The United States Supreme Court has repeatedly ruled that school choice programs based on private choice where individuals rather than the government decide where scholarships are used are perfectly constitutional.” 

Bender, who will be arguing the case for the taxpayers, said about $35 million is siphoned from the general fund into religious STO coffers.

“The Supreme Court has held it’s OK for the state to give out vouchers to a parent if they have a good reason to do it, but the court says the vouchers have to be given out in a religiously neutral basis, and these vouchers are not given out in a religiously neutral basis,” Bender said.

One case that still hasn’t been granted review, but probably will, is a challenge to the matching funds provision of Arizona’s Clean Elections Law.

Nicholas Dranias, of the Goldwater Institute, which brought the suit against the state on behalf of several privately funded candidates, said most Supreme Court observers believe that the court wouldn’t have intervened in the case if it hadn’t intended to grant review.

The court in June blocked the state from distributing matching funds for publicly funded political candidates. Clean Elections candidates in the past received a dollar-for-dollar match if their traditionally funded rivals spent more than the specified threshold.

The privately funded candidates argued that the system chills their speech and the speech of independent expenditure committees by causing them to delay their campaign spending to avoid triggering matching funds until later in the campaign when the publicly funded candidates have less time to spend them.

“What’s at stake is the basic principle that people should be free to speak their mind and engage in the political process without fear the government is going to punish them for doing so,” Dranias said. “And if I spend money projecting my message, then the government is going to subsidize and finance my opponent is clearly an effort by the government to punish me for speaking.”

Bender, who teaches constitutional law and follows the Supreme Court closely, said all signs indicate the court will permanently block the matching funds.

He said it was remarkable that the court blocked the funds without even yet granting review. In a previous case involving federal elections funding, four members of the court made it clear they didn’t like the idea of matching funds.

Dranias said the court will probably decide to grant review by December.

The last of the significant Arizona cases before the court is the state’s employer sanctions law, or the Legal Arizona Workers Act, which requires employers to check the immigration status of all new workers through the federal government’s E-verify system and fire those found not to be in this country legally.

Business and civil liberties groups brought appealed a lower-court ruling that upheld the law.

The Chamber of Commerce and American Civil Liberties Union argue that Arizona overstepped its authority with the law because only Congress has the power to pass laws regarding immigration.

Bender said that about a dozen times a year the court ask the solicitor general to recommend whether to grant review on a case that has some aspect of federal law but doesn’t include the federal government as a party.

In this case, the solicitor general found the law was unconstitutional and persuaded the court to take the case, Bender said.

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