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Reforming election reform

man writing a contractDebate over HB2305 continues after opponents gather enough signatures to put it on the ballot

Groups opposing the state’s election reform law rejoiced on Oct. 29 when the secretary of state concluded the referendum against the law has enough signatures to appear on the 2014 ballot.

To force a referendum against HB2305, approved in the waning hours of this year’s legislative session, opponents had to gather 86,405 valid signatures of registered Arizona voters.

It was a difficult task, complicated by the short time frame for signature collection and the summer heat. In the end, supporters collected 110,770 valid signatures and successfully put the law on hold until voters weigh in during the 2014 election.

But supporters of the law say the battle is far from over.

The legal challenge

Barrett Marson, spokesman for Protect Our Vote, one of political groups formed to defend the law, said there is still a path to keeping the referendum off the 2014 ballot, and it leads straight through the courts.

Marson outlined the case that H2305’s supporters plan to offer in court: Tens of thousands of signatures should be invalidated because people who collected those signatures are felons or out-of-state residents who didn’t fill out the proper paperwork to gather signatures in Arizona.

On top of that, entire petition sheets should be invalidated, he said, because of a single fraudulent signature on the sheet.

Marson cited several individual signatures on petition sheets that are suspicious, and pointed to multiple examples of two different signers with the same handwriting and the same address. Other examples included two signers with the same name, the same address but with a different signature.

Marson argues that any fraudulent signatures should result in the disqualification of the entire petition sheet, which can contain as many as 15 signatures.

Under the substantial compliance standard of scrutiny, the courts have previously been reluctant to toss whole petition sheets because of one bad signature. But Marson argued that it would be a different outcome if the courts are considering issues under the higher level of scrutiny that is applied to referendums.

Election attorney Kory Langhofer said that may be true, but it’s a complicated issue.

To get whole petition sheets disqualified, opponents must prove that the signature affidavit on the back of the form was fraudulently signed, he said. The affidavit states that the signature gatherer believes each signer’s name and residence are correct.

In other words, they must prove the signature gatherer knew the signatures were forged.

“They would probably have to show that the (petition) circulator knew what the rules were and knew that the person signing the affidavit didn’t meet those rules. So it’s a lot of work to invalidate one petition sheet,” Langhofer said.

In total, Marson said attorneys have found roughly 30,000 signatures — and counting — that should have been invalidated, if entire sheets are included.

If all goes their way in court, Marson said he believes there are enough invalid signatures and petition sheets for a judge to block the referendum from ever happening.

But Langhofer said getting a judge to invalidate enough signatures to stop the referendum would be “an uphill battle.”

“It’s a long shot. It may be a shot worth taking because it’s cheaper to bring a lawsuit and win than it is to run a whole campaign for the referendum. But with the numbers being where they are, it’s a long shot,” he said.

An alternative approach

But there is another way lawmakers could keep the issue from the ballot and still make the legislative changes they want — though the political price may be too high to even try.

The consensus among election lawyers and constitutional experts is that nothing prevents the Legislature from repealing the law or passing another bill with provisions similar to HB2305 next session.

But some lawyers said organizers of the anti-HB2305 referendum would have a good argument in court to say the Legislature is violating the constitutional provision that says once the people have successfully placed a proposal on the ballot, it will not become law unless approved by the public.

The lawyers and political experts all agree that repealing HB2305 is clearly within the Legislature’s purview, since that is effectively the aim of the referendum.

But others said the courts would be reluctant to intervene if the Legislature passed a similar law, as any legal challenge would essentially require the court to tell lawmakers they can’t legislate.

“There is a case law out there which says that the Legislature is always entitled to legislate, and they are entitled to legislate on the exact same topics that are addressed in HB2305,” said Republican attorney Lee Miller.

ASU law professor Paul Bender echoed the view that a repeal of HB2305 is permissible, should lawmakers opt to scrap the law altogether and keep it from going to the ballot.

Bender also agreed that repealing H2305 and then passing a similar law is also within the Legislature’s authority, although he believes that such a tactic goes against the spirit of the Constitution.

However, Langhofer thinks H2305’s critics could have a good-faith argument in court that such a move by the Legislature is impermissible, since laws that are subject to a successful referendum are effectively put on hold until they’re decided by the people.

Should the Legislature repeal HB2305 and pass a similar bill, it would be lawmakers’ way of either forcing the law’s critics to start from scratch on a new referendum, or daring them to persuade the courts that legislators are illegally monkeying with the public’s referendum powers.

Should the Legislature exercise its power this way, Bender said he hopes the court would find a way to stop such a maneuver and use its authority to “preserve” the people’s referendum powers.

Bender suggested that, more than anything, the political dynamics will prevent the Legislature from employing such a strategy. The political price would be steep, he said, given that many would view it as a “deplorable” attack on the Constitution’s direct democracy provisions.

“The political price of doing that would be so high, that’s probably why it’s never come up and will never come up,” Bender said.

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