More than a century after Arizona’s voters gave themselves a Constitution and the right to write laws, legislators still can’t quite accept the fact that they have competition.
And this year legislators, backed by powerful business interests including the Arizona Chamber of Commerce and Industry, are preparing to launch a sustained assault on the initiative process.
Their latest reason? Last year’s Proposition 206, the initiative that hiked the minimum wage and which lawmakers now say forces them to spend additional state money.
Legislators this year have proposed a rash of bills designed to make the initiative process more difficult. They’re proposing tougher signature-gathering requirements for groups seeking to change the law and restrictions on funding streams for initiative campaigns.
They’re also seeking an outright repeal of the Voter Protection Act, which prevents lawmakers from simply repealing voter-approved laws, or even changing them unless that change has bipartisan support and furthers the intent of the proposition.
Failing that, they’re hoping voters will at least go along with some reforms to the Voter Protection Act.
Lawmakers are also trying to make drastic changes to who can work as a signature gatherer, pushing a bill that would require petition circulators to pass criminal background checks, make signature-gathering companies put up bonds for circulators who work on initiatives and prohibit petition circulators from being paid per signature.
Glenn Hamer, president of the Arizona Chamber, recently called the initiative process the “achilles heel” of Arizona’s state government. The Arizona Chamber, along with the Phoenix Chamber of Commerce, places initiative reform among its top policy agenda items for the year.
Hamer called the 2016 election a “wake up call” to the need to reform the initiative process to prevent unions from pushing more allegedly job-killing policies like the minimum wage increase through Arizona’s initiative process.
Like many Republican lawmakers, Hamer argues the initiative process handcuffs the Legislature, and that the Voter Protection Act prevents lawmakers from fixing any unintended consequences that could arise from an initiative.
“We’re about the easiest state in the country to get something on the ballot, and we’re about the hardest state in the country to change something that passes. That’s a bad combination,” Hamer said.
But Joel Edman, executive director of the voting rights advocacy group Arizona Advocacy Network, said it’s not that easy to get an initiative on the ballot. It requires writing a law, gathering hundreds of thousands of valid signatures from registered voters and complying with strict rules and deadlines.
And there’s a good reason it’s difficult for the Legislature to change an initiative: Before the Voter Protection Act, the lawmakers repealed initiatives they didn’t like.
“People really like their ability to make their own laws, and they really don’t trust elected officials, including the Legislature,” he said. “To start attacking the ability that people in Arizona have had for over a century to make their own laws just totally ignores that people are pissed at the way politicians do things.”
The citizens’ initiative has been a part of the Arizona Constitution since statehood. Arizona is one of 24 mostly Western states that have some form of citizen initiative, but is among a handful of states that most frequently use the initiative process, according to the National Conference of State Legislatures.
In a way, Prop. 206 perfectly illustrates why Arizona’s founding fathers felt it necessary to allow the people to bypass the Legislature through the initiative.
Arizona’s founders were deeply suspicious of government and didn’t trust politicians to remain true to their constituents over the day’s powerful industries, such as mining, ranching and farming.
Politicians, then and now, are prone to ignore the will of the majority in favor of the will of powerful interests.
On the other hand, Prop. 206 is also a prime example of why the majority party in the Legislature can’t stand the initiative process.
Initiatives constrain lawmakers’ ability to make policy decisions and govern, especially to craft the state budget. When voters approved Prop. 206, for example, lawmakers were left scrambling to figure out how to afford the pay raises to contracted non-government workers, such as developmental disability service providers.
And the ideas proposed by initiative are frequently at odds with the ruling party’s ideology or vision for the state.
FOUNDING FATHERS LOVED IT
Since statehood, the Arizona Constitution has enshrined the right of the people to circumvent the Legislature and get their own ideas on the ballot. The initiative process is as old as the state itself.
And so, too, is the Legislature’s disdain for it.
After a spate of ballot initiatives in 1912 and 1914, including women’s suffrage and alcohol prohibition, lawmakers asked voters for a constitutional amendment to make it harder to pass initiatives in 1916. Voters rejected that measure.
Now, 100 years later, lawmakers are still attempting to chip away at the process.
The 1916 constitutional amendment, which was referred to the ballot by the Legislature, would have required a majority of all voters to approve any initiative, not just a majority of the votes cast on the measure itself.
This idea roiled the president of the Arizona State Federation of Labor, B.T. Wilkinson, who wrote at the time that changing the initiative process would “cheat the people of their birthright.”
“It is absurd to claim that the people as a whole are not as intelligent or as able as the members of a legislature. … It is a rash commentary on Arizonans to say that the Legislature is wise, but the people are foolish,” Wilkinson wrote in an argument against the change.
Edman said the arguments lawmakers put up against the initiative today are essentially the same: that they know better than the voters.
Paul Bender, an attorney who focuses on Arizona constitutional law, called the power to put initiatives on the ballot for a vote by the people one of the most important rights in the state’s founding document.
“The framers really wanted that in there and they made that absolutely clear, that the people are the ultimate legislature. … The barriers (to getting on the ballot) are already in the Constitution, and I don’t think the Legislature is free to add to them, but they’re always trying to,” Bender said.
LAWMAKERS HATE IT
But for lawmakers, the initiative process, and especially the Voter Protection Act, has been a constant headache.
When voters approve a measure at the ballot, no matter how shortsighted or poorly thought out, that measure is locked in place.
Because Arizona is one of the easier states for initiatives to qualify for the ballot, House Speaker J.D. Mesnard worried that Arizona will become a petri dish for outside groups testing radical new laws. He supports many of the changes being offered this year.
The petri dish comparison holds some water, as Arizona, despite its generally conservative stance, was among the first states to approve a medical marijuana program at the ballot.
In fact, that’s why the state has a Voter Protection Act.
In 1996, voters approved a medical marijuana program at the ballot, but the following year, lawmakers simply repealed it.
In response, voters in 1998 proposed and approved the Voter Protection Act, which states that lawmakers can only amend initiatives to “further the purpose” of the initiative, and then only with a three-fourths vote in both chambers. .
Republican Rep. Michelle Ugenti-Rita of Scottsdale has been in the vanguard of the fight against the Voter Protection Act for years. She said it hogties lawmakers, prohibiting them from making significant changes to voter-approved measures, including large chunks of the budget.
“Sixty-six percent of our budget, approximately, is voter protected, that means those monies were already spent in an initiative. So there’s no ability by the Legislature to touch those monies,” she said.
She noted that a lot of initiative states don’t have any restrictions about what lawmakers can do with an initiative, and of those that do have restrictions, Arizona is among the toughest.
“For example, you have some states that don’t allow you to repeal (a voter approved measure) for two or three years,”
And lawmakers’ inability to make changes to initiatives hurts the state’s credit rating. Standard and Poor’s dinged Arizona’s credit rating because of the Voter Protection Act and lawmakers’ inability to make reforms to voter-approved measures.
Ugenti-Rita said even the ability of lawmakers to further the intent of the law is “murky” and lawmakers don’t actually know what would qualify as furthering the intent of the law.
ASSAULT ON THE VOTER PROTECTION ACT
This year, she’s again sponsoring legislation to ask voters to get rid of the act. Her HCR2002 would ask voters to repeal the Voter Protection Act, but even she doubts voters would go for a repeal.
Ugenti-Rita noted that she has been pushing similar measures for years, long before voters approved the minimum wage increase.
And she said just because previous lawmakers had gone against the will of the voters by repealing the medical marijuana initiative, that doesn’t mean the current Legislature would make the same mistake.
Ugenti-Rita also noted that her package of measures wouldn’t affect citizens’ ability to put something on the ballot.
“This has nothing to do with touching that process that was put in place at statehood. This has to do (the Voter Protection Act), something that was voted on and put into our Constitution in 1998. If it were removed, the process for putting something on the ballot and the citizens’ right to do that, would not be touched or changed in any way,” she said.
The Arizona Chamber eventually wants to ask voters to make some changes to the Voter Protection Act, though Hamer said he’s first focused on making statutory changes in the next few months through the Legislature.
He said lawmakers should have the ability to make “common-sense changes” to ballot measures, and many of those changes likely have public support. Voters generally approve the broad strokes of a ballot measure, but don’t consider the minutiae of putting it into effect, he said.
“Right now, we’re simply handcuffed because of the Voter Protection Act from making common-sense changes,” Hamer said.
Hamer couldn’t say if a measure to alter the Voter Protection Act would be on the ballot in 2018.
“It’ll be sometime within both of our lifetimes, God willing,” he said.
Ugenti-Rita is more hopeful that Arizonans will get behind her HCR2007. It would ask voters to reform the Voter Protection Act so the Legislature could change a voter-approved legislative referendum, which lawmakers themselves send to the people for a vote.
That, Ugenti-Rita said, would likely be a much easier pill for voters to swallow.
And while Edman said that idea sounded more reasonable and palatable than a straight repeal, he still didn’t like the idea and likened it to an end-run around a contractual agreement.
“It’s sort of like a contract. There are two people involved – the Legislature and the voters got together to do something in a referendum. And there are some contracts where one party can unilaterally change it. But there’s not a lot of them,” he said.
Additionally, Ugenti-Rita’s HB2320 would require the ballot to contain a warning on initiatives telling voters that the “measure cannot be changed in the future if approved on the ballot except by a three fourths vote of the Legislature and if the change furthers the purpose of the original ballot measure, or by referring the change to the ballot.”
It’s an old idea Ugenti-Rita has tried to pass for years, but has so far been unsuccessful, mostly due to complaints from county officials that it will take up valuable space on the ballot.
But Edman argued that reminding voters that lawmakers can’t change voter-approved measures is actually a selling point, not a warning.
“I’m not so sure that telling people that ‘if you pass this, the Legislature can’t mess with it’ actually makes it less likely to pass, given how poor the approval rating numbers are in the Legislature as a whole,” Edman said.
The House Government Committee was scheduled to debate Ugenti-Rita’s three policies at its February 2 meeting, but postponed the hearing.
SIGNATURE GATHERERS AND FRAUD
Heeding calls from the Arizona Chamber of Commerce and Industry, Republican Rep. Vince Leach of Oro Valley is attempting to crack down on those who make a living circulating petitions for ballot initiatives.
His HB2404, which has the support of the chamber, would make a host of changes that essentially ensures no signature gatherer will work for an initiative.
The bill would require signature gatherers to pass a background check and pay a registration fee. They wouldn’t be allowed to gather signatures if they had previously been convicted of fraud, forgery or identity theft.
Perhaps the largest change – signature gatherers could not be paid on a per-signature basis as they are now.
Hamer argued that the process now is rife with ways for unions to get away with fraud and game the system.
“What we’re doing is we’re closing the door to fraud or abuse that apparently occurred this past cycle. We’re reacting to something that just happened. We understand that the there’s an ebb and flow to politics, but we think all of the changes we’re suggesting as just good government reforms,” he said.
And, even if the Legislature and the chamber were on opposing sides, Hamer said they would still support reforms.
Drew Chavez, the owner of signature-gathering firm Petition Partners, called Leach’s bill “the most far-reaching initiative reform bill that I’ve seen” and said the bill would greatly increase the cost of getting a measure on the ballot.
The bill would shut true grassroots groups out of the initiative process, and ensure that only the people with a lot of money, which are primarily out-of-state groups, could participate in the process, he said.
“They eliminate true citizen direct democracy. They make this is a big business, which it already is, but you’re excluding those groups entirely,” Chavez said.
And he noted that none of those requirements would apply to paid signature gatherers working for candidates.
Chavez agrees that there are some areas in need of reform. He wants to see signature gatherers who are found to be bad actors — who forge signatures, for example — prosecuted, something he says doesn’t happen now. And there are certainly ways to make the entire process more efficient, he said.
But, he added, “efficiency is not the goal of the legislators. It’s speed bumps. And even more than that, it’s chain-link fences and barbed wire.”
Republican Sen. John Kavanagh is also attempting to get in on the action with his SCR1013, which would ask voters to require initiative measures that amend laws to collect signatures from 10 percent of the qualified electors from each legislative district. Statewide initiative measures that amend the state Constitution would be required to collect signatures from 15 percent of the qualified electors from each legislative district.
Currently, initiative backers need only meet those percentages of all voters statewide, not in each legislative district. The bill has not yet received a committee hearing.
Like most reforms lawmakers propose to the initiative process, it wouldn’t affect candidates the same way. They wouldn’t be required to gather signatures in all the state’s 30 legislative districts.
Chavez said Kavanagh and Leach’s efforts fit in perfectly with the long-term trend of making it harder for an initiative to qualify for the ballot, while making it easier for candidates.
“This is systematic… over the last 15 years especially, the process to get on the ballot as a candidate has become remarkably easier, while at the same time (the) referendum has almost been eliminated with strict compliance and initiatives becoming more and more difficult with hoops. Is that a big mystery of why? I don’t think so,” he said.
Finally, Republican Rep. Bob Thorpe of Flagstaff is pushing HB2255, which would ban ballot measure committees from accepting out-of-state donations, and it would ban non-Arizonans from making ballot measure expenditures.
The bill comes after millions poured into Arizona ballot measure campaigns from both sides of the issues. The pro-marijuana campaign got more than $3 million from outside Arizona, largely from the D.C.-based Marijuana Policy Project. Its opposition, Arizonans for Responsible Drug Policy, got more than $750,000 from outside the state, including a $500,000 boost from casino magnate Sheldon Adelson.
Plus, a measure to cap hospital executive pay that never appeared on the ballot was funded entirely by a California labor union.
Bender, the constitutional lawyer, said Thorpe’s bill is likely unconstitutional, saying essentially that free speech in Arizona doesn’t apply only to Arizonans.
“There’s a constitutional right, I think, to raise money for your campaign anywhere,” he said.
The bill has not been scheduled for a committee hearing.
ATTACKS NOT NEW, BUT STAKES HIGH
While the voter initiative process constantly runs into hurdles at the Legislature, the state saw a new way for initiatives to be challenged this cycle. Opponents to the minimum wage measure used a 2014 law to subpoena signature gatherers to ask questions about various aspects of the work they did. The change in law got some signatures tossed out when people who were subpoenaed didn’t show up in court.
The initiative process brought medical marijuana to Arizona. It’s responsible for a ban on cockfighting, the state’s first campaign contribution limits, and the observation of Martin Luther King Day. Without the voter initiative, Arizona wouldn’t have a ban on smoking in bars. The state wouldn’t have an independent redistricting commission. Arizona would still have a payday loan industry.
Voters also got to voice their opinions on, and ultimately reject, open primaries, higher sales taxes and mail-in voting.
But Chavez said if the Legislature doesn’t want citizens to go around them with the initiative, lawmakers should be more responsive.
“It’s not the process that they should be upset about. It’s the fact that they’re on the wrong side of the voters,” Chavez said.