The balance between election officials’ need for time to count signatures and petition gatherers’ need to satisfy a mathematical margin-of-error quietly tipped last year. The result is higher bar for citizen initiatives to get onto the ballot.
An elections omnibus bill pushed by Secretary of State Ken Bennett in
2011 eliminated a law known as the 95-105 rule. That rule required a full count of all signatures on an initiative petition if the estimated number of valid signatures was 5 percent above or below 100 percent of the minimum number required. Thus the name 95-105.
The rule was meant to account for margins of error in the mathematical formula used to determine the number of valid signatures on a petition.
Because the deadline for submitting petitions is so late that the counties don’t have enough time to do a full count, Arizona has historically given automatic ballot access to any initiative that fell within the 5 percent margin. The result is that initiatives that have at least 95 percent of the necessary signatures go to the ballot.
Currently, ballot access is determined solely by a random 5 percent sample of signatures the Secretary of State’s Office sends to the counties for validation. Election officials use the number of valid signatures in the 5 percent sample to estimate how many valid signatures an initiative has as a whole.
If the sample determines that an initiative has at least the minimum number of required signatures — currently 172,809 for statutory changes and 259,213 for constitutional amendments — it goes on the ballot. If it has fewer, it’s rejected.
Bennett said the change is both an acknowledgement of the time constraints on county election officials who don’t have enough time to do a full count, and an issue of fairness to ensure that initiatives that don’t have enough signatures don’t get onto the ballot anyway.
“You were letting them on the ballot at 95 percent,” Bennett said.
“And if the Constitution requires 100 percent, then that’s what the number ought to be. By changing it, we’ve basically corrected that mathematical ‘never never land’ between 95 and 105 and said it all comes down to whether you meet the number of signatures. That’s 100 percent. Not 95 or 105.”
But because election officials use a mathematical formula to estimate the number of signatures instead of actually checking the validity of every single signature on a petition, critics of the new law argue that it doesn’t account for margins of error that could lead to incorrect totals. Some even argue that it is an unconstitutional burden on the initiative process.
Andrew Chavez, owner and CEO of the signature gathering firm Petition Partners, said the 95-105 rule is needed because the formula used to determine validity is subject to a 5.5 percent margin-of-error. The counties check 5 percent of the signatures and multiply the number by
20 to estimate the total number. It’s the same reason pollsters always include a margin of error in their findings, he said.
If a random sample shows a petition with 95 percent of the needed signatures, there’s as good a chance that it has 100 percent as there is that it has 90 percent, Chavez said. The writers of the law understood that, he said.
“They weren’t even considering human error,” Chavez said. “They were just considering math, real math numbers, that there is a margin of error there.”
Paul Johnson, chairman of the Open Government Committee, which is running a ballot initiative to create a “top-two” primary election system in Arizona, said the system is now “rigged” against the citizen initiative process.
“If you look at it on its surface, from a statistical standpoint, it doesn’t work. And that is a game-changer on more than just our initiative,” said Johnson, whose initiative nearly fell victim to the new law in August.
The Arizona Supreme Court ruled in 1983 that any initiative petition that fell within the 95-to-105 range should be placed on the ballot if county election officials don’t have the time to verify every signature before ballots are sent to the printers.
“The random sample method utilized in our statutory scheme is the yardstick by which the secretary of state can measure whether the number of qualified electors is too high to be questioned, too low to be considered, or in the gray area which necessitates verifying,” then- Chief Justice William Holohan wrote in the Supreme Court’s ruling.
A 2010 ballot measure would have given county officials the time they need, or at least more time than they have now. Proposition 112 would have moved the deadline for submitting initiatives from four months before the general election to six months. The proposition failed by
Maricopa County Elections Director Karen Osborne said Prop. 112 would have given her and other county election officials the time they needed to conduct a full validity check of signatures that fell within the 95-105 range. Osborne said Maricopa County suffered under the
95-105 rule more than other counties because of the sheer number of signatures it had to count.
“I’m pleased with the change because at least it’s a finite thing for us. Either you have enough or you don’t,” Osborne said.
In 2008, the rule put three initiatives on the ballot, despite having less than 100 percent of the minimum number of signatures. But this year, the elimination of the rule nearly kept Proposition 121, the Open Elections/Open Government Act, off the ballot. The top-two primary initiative fell within the 95-to-100 percent range and originally failed to make the ballot, but a Maricopa County Superior Court judge restored some of the rejected signatures.
Rep. J.D. Mesnard, who sponsored HB2304, the 2011 elections bill, said Prop. 112 was the Legislature’s attempt to fix the problems with the
95-105 rule. Mesnard, R-Chandler, said the time frame for county recorders was too short, especially considering the myriad legal challenges that often accompany initiatives.
After the 2010 proposition failed, he said, the elections bill was the best remedy.
“At the end of the day, you have to pick some threshold,” Mesnard said. “I don’t think they’re trying to make it more difficult. I think they’re trying to balance out the time, resources and effort with putting on the ballot something that meets the threshold of public support.”
Supporters of the law, such as Bennett and Mesnard, say they’re not erring against the side of the voters with the new law, which they describe as protecting the integrity of the initiative process by ensuring that petitions actually meet or exceed the 100 percent threshold. Some critics, however, say the law is not only bad policy — it’s unconstitutional.
In a lawsuit it filed to restore some of its rejected signatures and get its measure onto the ballot, the Open Government Committee argued that the burdens in the 2011 bill violate the initiative process established in the Arizona Constitution.
The complaint filed by the committee argues that the new law doesn’t account for margins of error and, due to the “double subtraction”
formula used by election officials, actually requires initiatives to show that they have more than
100 percent of the minimum number of signatures.
“We think the courts are going to find that that is not in holding with what the founders of this state wanted when they created the initiative process,” Johnson said. “They wanted them all counted.
We’ve created a process to get around that, then we rigged that system to make sure it’s geared against them. Even using pure statistical analysis, you couldn’t get a statistician that would say, ‘Yeah, the way they’re doing it is fair.’”
However, that court battle will have to wait. Now that the Arizona Supreme Court ordered the Open Elections/Open Government Act to the November ballot, the Open Government Committee is abandoning its challenge of HB2304.
Consultant Joe Yuhas, of the firm Riester, which is working on the top- two primary initiative, said the Open Government Committee must now focus on the campaign for Prop. 121. Challenging the law’s constitutionality in court, he said, is not a priority right now.
But Yuhas said the change may well affect initiatives in the 2014 election, and said the issue will have to be settled before that.
“By no means are we walking away from the issue, but it’s not an immediate concern,” Yuhas said. “I think it’s in everyone’s interest to revisit this.”