Legislators consider preemptive repeal of controversial election bill

Lawmakers are considering introducing legislation to repeal last year’s election reform bill, HB2305, which remains on hold because opponents gathered enough signatures to force a referendum on the law this November.

Republican Rep. Michele Reagan of Scottsdale said she is working with leadership to repeal the bill before it goes up for the referendum election. However, she would like lawmakers to go back and pass portions of the bill once again in 2015.

“I would prefer, as I think everyone would prefer, the a la carte method, which is the way I introduced them last year… There are certainly parts of that bill that I support more than others,” Reagan said.

The law has been enjoined until the voters either approve it or reject it in November. But the legislature could preemptively repeal the bill, killing opponents’ opportunity to knock the law down via a vote of the people.
Reagan said the push to pre-emptively repeal the law comes from the concern that if the referendum were successful, and the law struck down, the Voter Protection Act would prohibit lawmakers from making changes in state statutes governing elections in the future.

Reagan said the possibility of having large portions of the state’s election laws locked down was an unintended consequence of HB2305 that no one saw coming, which is why she’s asking GOP leadership in the Senate to sponsor the repeal.

“To have something that big with that many statutes be voter protected, we wouldn’t be able to conform our elections to get even the easy stuff that we do, the non-controversial things, all of that would have to go to the ballot. That is unacceptable,” Reagan said.

Constitutional scholars disagree about whether a referendum vote to repeal legislation is voter protected. But most constitutional experts say lawmakers could then go back and once again pass the exact same bill, or portions of the legislation as a way to get around the referendum. Any move to do so, however would likely end up in the courts.

Republican Sen. John McComish of Ahwatukee, who voted for the bill and now supports a repeal, said he doesn’t know if lawmakers would want to pass the law again, or provisions of the law, given that the courts would probably look unfavorably on the effort.

“What will happen along those lines, I don’t have any idea. But if you think of a court in the middle of this, if we went back and passed the individual pieces, a judge would probably say ‘Well, wait a minute. You didn’t really repeal the law. You repealed it and then reinstituted it.’ So we’d have to be careful of that,” McComish said.

Republican Sen. Adam Driggs of Phoenix, who has had discussions with both Reagan and McComish about repealing the law, said he can’t control what bills lawmakers decide to introduce. But he said he would discourage lawmakers from immediately sponsoring new legislation including measures from a repealed HB2305. Driggs also voted for HB2305 last year.

“I’m not anxious to do that and I don’t have the intention to do that,” Driggs said. “There’s a lot of issues in that bill, some are more meritorious, some are less meritorious, and there are things that the Legislature should address.”
“It has to be a true repeal,” he added.

But Reagan said she’d like to see at least some of the issues included in HB2305 revisited – perhaps next session – as separate pieces of legislation, not an omnibus bill as was passed last year. Reagan is running for Secretary of State, the state’s top elections office, next year and will not be in the Legislature to sponsor the provisions herself.

“There’s nothing to say that somebody couldn’t revisit it or run their own bill… There were parts in there that no one would have problems with,” Reagan said.

Robbie Sherwood, spokesman for the Protect Your Right to Vote committee, which gathered the signatures to force the referendum, said the more than 86,000 people who signed the petition supporting a referendum have earned the right to vote on the bill.

“While a repeal could be seen as an acknowledgement by the sponsors of HB2305 that they were wrong, and that the bill would in fact prevent thousands of eligible voters from casting ballots, we don’t trust that they won’t try to pass pieces of the bill after the repeal. Politicians rarely give up on a bad idea, in my experience… The bottom line is we don’t trust the politicians to do the right thing here,” he wrote in an email.

Sherwood said there are no non-controversial portions of the bill, and said even though they could lose on Election Day, and the bill would become law, he’s willing to risk it and stick with the referendum tactic.

HB2305 was a last-minute compilation of several controversial elections measures that lawmakers approved on party-lines in the final hours of the 2013 legislative session.

The bill would outlaw the practice of volunteers for political committees picking up early ballots from voters and delivering them to election officials, a get-out-the-vote technique that has been successfully used by many of the Latino groups to engage citizens who otherwise are not likely to vote.

Election officials argued that the practice of picking up ballots opens the door for voter fraud, though no wrongdoing was ever proved, and contended that groups who picked up ballots waited until the last minute to deliver them to election officials, which slowed the ballot counting process.

The bill would also allow county election officials to drop from the Permanent Early Voting List those who had not used their early ballot in at least two federal elections.

If people on the list don’t use their early ballot, or don’t realize they are on the early ballot list, and vote at their regular polling place instead, they are forced to cast a provisional ballot. Generally, that is more likely to be thrown out for technical reasons and requires more time and scrutiny from elections officials, thus slowing down the vote count.

Another provision of the law would dramatically raises the number of signatures that Green Party, Libertarian and other third-party candidates would need to qualify for the ballot. Whereas signature requirements have historically been based on the number of registered votes a party has, the bill equalizes the requirements for all parties.

The end result is that Greens and Libertarians who could previously get on the ballot with a dozen signatures or fewer in some districts now must get hundreds or thousands. The parties allege that the bill was intended to get them off the ballot, especially in the case of Libertarians whom some Republicans say have cost them some close races in the past few years.

The final main provision of the law would increase the judicial scrutiny for citizen initiatives and recall campaigns. It would require the petitions to demonstrate strict compliance with the law, rather than the current substantial compliance, allowing petition sheets to be tossed out for minor technical reasons like having the wrong margins on the sheets.

The bill was opposed by a broad coalition of Democrats, Latino get-out-the-vote groups, citizens’ initiative backers and third parties like Libertarians and Greens, who all called it a form of voter suppression.

Many provisions of the bill were conceived as a way to speed up the ballot-counting process after several races in the 2012 election were not decided for more than a week. It was also meant to ensure that there was no fraud in the elections system, be it from outside groups picking up ballots, or sham candidates getting on the ballot with a very low threshold of signatures.
Latinos and Democrats characterized the bill as a way for Republicans to stop successful efforts to engage the Latino community in the political process through ballot pickups and the Permanent Early Voting List. Third party candidates said the new signature requirements for third party candidates to appear on the ballot are unfair, and mean that Libertarians and Greens would have no real chance of appearing on the ballot.