Nearly two decades after voters blocked lawmakers from tinkering with ballot measures, the Legislature it trying to take the power back.
One measure crafted by Rep. J.D. Mesnard, R-Chandler, would allow lawmakers to update, alter and even repeal what voters enact as long as they do it by the same margin the measure was enacted.
So if a proposal gets the approval of 60 percent of voters, it could be repealed by 18 of the 30 senators and 36 of 60 representatives.
What it also means, said Mesnard, is if something was approved at the ballot by a bare majority, it then could be undone by a simple majority of lawmakers. Now it requires the consent of three-fourths of both chambers, meaning 23 senators and 45 representatives.
Potentially more significant, what would allow that to happen is the other half of what is in HCR2043: It would remove the constitutional requirement that lawmakers can only make changes that “further the purpose” of what voters approved in the first place.
Mesnard is not alone in his bid to undo some of the rights in the Voter Protection Act.
Rep. Bob Thorpe, R-Flagstaff, has a similar measure. His HCR2023 would both repeal the “further the purpose” language and allow changes or repeal with a three-fifths margin instead of three-fourths.
But Thorpe also proposes to erect new hurdles in the path of those who want to propose their own laws.
HCR2047 would allow measures on the ballot only if at least 25 percent of the signatures came from the 13 rural counties. Thorpe said it’s not right that initiative backers can get all the signatures they need to propose changes in the law from the two urban counties.
And Thorpe is throwing a specific roadblock in the path of those now out gathering signatures to allow Arizonans to use marijuana for recreational purposes.
HCR2024 would say that a simple majority of those who go to the polls in November would not be good enough to make that change. Instead, drugs considered illegal by federal law would be allowed in Arizona only if the measure gets a three-fifths vote, something the 2010 medical marijuana law did not get.
The safeguard in all this is that all four measures, if they survive the legislative process, could take effect only if approved by voters in November.
At issue is the ongoing tension between the century-old right of voters to make their own laws and the contention by some legislators that they need better control over the laws.
That tension came into focus in 1996 when voters approved the first medical marijuana law. But the following year, the Legislature, contending voters may not have understood the implications, effectively repealed it.
That so angered supporters of the law they got voters in 1998 to overturn the 1997 legislative repeal. More significant, they put another measure on the ballot to say that changes of voter-approved measure can be made only if they “further the purpose,” and only with that three-fourths vote. That became known as the Voter Protection Act.
Mesnard said that’s not workable.
He said he’s not against the “direct democracy” that allows voters to propose their own laws when the Legislature refuses to act.
“But there has to be an acknowledgement that times change,” he said. More to the point, the current system under the Voter Protection Act means if lawmakers believe an initiative is no longer workable the only way to alter or repeal it is to take it back to voters. And Mesnard said that’s not a practical solution.
“Our ballot is often one of the longest in the country,” he said.
Mesnard also contends that many voters who support some change may not be aware that the Voter Protection Act means what they approve is “locked in stone for all practical purposes.”
His measure does retain the requirement for changes to further the purpose of an original measure — but only if that was approved in the first place by two thirds of the voters.
That almost never happens.
In 2006, for example, voters overwhelmingly approved laws making it illegal to confine a pig during pregnancy or any calf raised for veal for the majority of the day in any manner that precludes it from lying down, fully extending limbs or turning around freely. It got close to 62 percent of the vote.
That same year voters created a state minimum wage higher than what federal law requires, which got 65.4 percent.
Thorpe’s parallel proposal says lawmakers can ignore the “furthers the purpose” language even if something is approved overwhelmingly at the ballot. But he would keep the requirement for a supermajority vote, albeit just three-fifths of the Legislature versus the current three-fourths hurdle.
But Thorpe’s proposal is more far-reaching in one respect.
What Mesnard wants would affect only future measures; Thorpe’s is retroactive, allowing lawmakers to alter anything approved by voters in the past.
Like Mesnard, Thorpe says lawmakers need more leeway to make changes.
“We are the legislative branch of the government,” he said. “That’s our job to deal with legislation.”
And Thorpe contends it’s far too easy for a bad law to slip through.
“You could have a kid in sixth grade write a referendum,” he said. “And if it’s marketed correctly to the voters it could get passed without any kind of oversight, any kind of vetting.”
That ease of getting things approved is what’s behind Thorpe’s measure aimed squarely at the recreational marijuana initiative. He said anything that allows Arizonans to use drugs the federal government considers having no useful purpose should require more than a simple majority.
That hurdle could be impossible to overcome: The 2010 medical marijuana initiative passed with just a 50.1 percent margin. In fact, it was defeated in 13 of the state’s 15 counties but carried only because of a large pro-marijuana vote in Pima and Coconino counties.
Thorpe said the supermajority requirement is appropriate because of “the huge negative impact to society.”