Petition measure sparks heated debate over future of citizens’ initiatives

When Republican Rep. Vince Leach proposed a bill to ban paying petition circulators for citizens’ initiatives on a per-signature basis, Democrats were collectively outraged and denounced the bill as an “attack on democracy.”

But they didn’t mention that just eight years ago, heeding the call of a Democratic governor, Democrats proposed almost the exact same bill.

Republicans today, and Democrats back in 2009, say prohibiting paid petition circulators from working on a per-signature basis would reduce fraud in the citizens’ initiative process. Republican lawmakers this year have pushed a narrative that the once citizen-driven method of passing laws on the ballot has been “hijacked” by out-of-state special interest groups, and claimed, as Democrats did in 2009, that the system is “rife with fraud.”

The attorneys and signature gathering firms that are hired every two years to get initiatives onto the ballot don’t disagree. There is fraud, they say.

But fraud gets caught.

Fraudulent signatures don’t count toward the more than 150,000 valid signatures from registered Arizona voters that are needed for an initiative to qualify for the ballot. Claims that HB2404, the latest attempt at a pay-by-signature ban, will do anything to stamp out fraud, are “laughable,” they say.

Initiatives are already heavily policed by multiple layers of checks built into the system. Fraudulent and irregular signatures are fully rooted out before an initiative is placed on the ballot, according to those in the petition circulation business. Rather than help restore a grassroots-based citizens’ initiative process, banning signatures from being collecting on a pay-per-signature basis would harm those without deep pockets trying to pass laws by ballot.

Election attorneys say HB2404 would drive up the cost of proposing initiatives, ensuring that only special interests have access to direct democracy.

“The irony here is that for big corporate interests who are willing to pay anything, the APSes of the world, this isn’t going to slow them down,” said elections attorney Andy Gordon. “They’ll just put more money into it. For more grassroots-based stuff, where you may want to supplement volunteer signatures with paid signatures, it may make it harder.”

And opponents of the measure hint that even if Gov. Doug Ducey signs the bill into law, Arizona’s direct democracy has a way of protecting itself. By taking the issue directly to the voters, citizens could overturn the Legislature’s law, and lock-in their own statutes governing the initiative process.

DEMOCRATS DENOUNCE BILL

As lawmakers voted on Leach’s pay-by-signature ban in the House, a few Democrats denounced the bill, calling it a typical Republican response to voters passing laws the GOP majority doesn’t like — most recently, an initiative raising Arizona’s minimum wage to $10 an hour.

Following reports of the Democrats’ own attempt to stamp out signature fraud in 2009, legislative Republicans have seized the minority party’s flip-flop to dismiss their protests as “playing politics.”

HB2404 passed the House on a party-line vote during a marathon floor session on February 23. The bill now awaits a committee hearing in the Senate, where its prospects of approval appear good.

Democrats argue that, unlike Republicans this year, their attempt to change the signature-gathering process was prompted by an actual problem, not a protest of citizen-approved laws.

Three initiatives were kept off the ballot in November 2008 due to an unusually high percentage of bad signatures. One initiative, an effort to increase the state’s sales tax for transportation infrastructure projects, was then-Democratic Gov. Janet Napolitano’s top priority. In her final State of the State address in January 2009, Napolitano called on lawmakers to reform the ballot initiative system by reducing the number of signatures it takes for initiatives to qualify for the ballot and banning per-signature pay for petition circulators.

Former Democratic Rep. Phil Lopes of Tucson sponsored HB2587 that year, which would have banned per-signature payments. Rep. Rebecca Rios, the current House minority leader, was a co-sponsor of Lopes’ bill in 2009.

But Rios argued that while Democrats were attempting to fix a real problem of large numbers of petition signatures being disqualified, Republicans are just lashing out at the populace that approved the minimum wage hike.

And she said HB2404 is just one of many bills Republicans have proposed this year that would crack down on initiatives.

“The difference is the context,” Rios said. “Today we’re looking at an entire package of bills that is specifically aimed at attacking direct democracy. We’re not just addressing one issue. We’re looking at a full-on attack on the ability for citizens to get issues on the ballot and react to an unresponsive legislation that fails to pass issues like education funding or minimum wage.”

In 2009, Lopes urged the House Government Committee to pass his bill with claims that it would reduce petition fraud, arguments that legislative Republicans echoed this year. Lopes told the committee that the Maricopa County elections director said “that it appeared that names were being copied from the phone directory onto the petitions.”

ON THE BLACKLIST

“There is some consensus among scholars, practitioners and even some courts that the practice of paying canvassers based on number of signatures they collect is directly linked to high levels of fraud in the signature gathering process,” Lopes said, citing a Fordham University Law Review study.

Lopes told the committee that he didn’t know all the reasons for signature fraud, but “we think that paying signature gatherers by name is a possible cause.”

That bill cleared the committee unanimously, but never received a vote on the House floor.

The fraud GOP lawmakers allege now, as Lopes and Napolitano claimed in 2009, is that petition circulators simply make up names and signatures in order to make more money. That does happen, according to Andrew Chavez, owner of Petition Partners, the largest petition circulating firm in Arizona and one of the largest petition firms in the Southwest.

It’s pretty easy to catch, though.

Chavez said besides looking for the obviously bad signatures — for example, one for “Mickey Mouse” — petition firms also look for more subtle forms of forgery, such as the same handwriting on several signatures, or if a person simply claims to have collected more signatures than what is feasible in a given timeframe.

“You see a lot of identifying patterns, pen strokes, how deep the pen goes into the paper, all that stuff we’re trained to identify,” Chavez said.

Petition Partners also checks signatures against an internal voter registration database and county voter rolls, removing any signatures that belong to people who aren’t qualified to sign. But most signatures aren’t invalidated because of fraud, Chavez said. They’re rejected for technical reasons — for instance, if a person isn’t registered to vote in a certain county or district, or a person lists a different address than is on their voter registration records.

County elections officials play a role as well. When an initiative campaign submits its petitions to the Secretary of State’s Office, the office sends a 5 percent sample of all signatures to county elections offices, which check the validity of that sample. The percentage of valid signatures is then extrapolated to find the total number of signatures that are presumed valid.

On top of that, any petition circulator who has a record of producing bad signatures ends up on Petition Partners’ blacklist, which now has more than 1,200 names, according to Chavez. Petition Partners shares that list with any initiative effort that asks, Chavez said.

“The misnomer is that these folks are all calculating and sly and are getting away with so much election fraud,” he said. “But the fact is, if you’re talking about them as a bunch of criminals, these people don’t really know what they’re doing. It’s not like you can give someone petitions and the next day they’ll show up with 2,000 signatures, and I’ll say, ‘OK.’ There are red flags all over the place.”

In the end, usually 70 percent to 80 percent of the remaining signatures are valid. Campaigns plan for that margin of error and usually provide far more signatures than the minimum required.

AN INCENTIVE FOR SELF-POLICING

Even after elections officials pore over samples of petitions, opponents of an initiative still have the chance to challenge in court any signatures they think are faulty by hiring attorneys like Gordon. In 2016, he helped lead a successful challenge of an initiative to cap hospital executives’ pay. Backers of the initiative pulled the plug the night before they were due in court to defend themselves against legal challenges to their petitions.

Gordon and attorney Jim Barton say that banning pay-per-signature circulators won’t change anything. Fraud is already rooted out.

“I have no idea why they think paying by the hour as opposed to paying by the signature is going to address some unknown fraud problem,” Gordon said.

Barton noted that the last rash of problems with signatures — which, coincidentally, was followed by Democrats’ attempt to ban pay-by-signature circulators — is a perfect example of how well the system works. Three initiatives, including the one pushed by Napolitano, were kept off the ballot due to bad signatures. The trouble in 2008 pointed to a real collapse of the signature gathering system, not the initiative process itself or the checks in place, Barton said.

The people who are hurt the most by bad signatures aren’t Arizonans, who are, after all, protected when initiatives are kept off the ballot, Barton said. Instead, it’s the signature gatherers and the investors who back initiatives. The pain of spending millions of dollars to back an initiative, only to be kept off the ballot, creates an incentive for self-policing to ensure the signatures they gather are valid.

The people who would be upset about the prospect of “folks sitting around in a circle and signing fake names” are the folks paying the circulators, he said.

But that’s a bogus scenario anyway, Barton said, because such a person would get caught, if not by the secretary of state and local elections officials, then by attorneys like him.

“Every cycle we go through some lawsuits and some signatures get tossed and others don’t get tossed, but I always thought that addressed the problem pretty well,” Gordon said.

Gordon and Barton both said Republicans’ true motivation is to “put another weight on the scale” and make it tougher to get initiatives on the ballot.

“The Legislature hates the initiative process because they don’t have control. It’s basically voters taking away their toys, and they don’t like it,” Gordon said.

He called claims of fraud a false narrative meant to push through a bill like HB2404.

“That gets back to the notion that this is a power play. The notion that it’s there to somehow protect the integrity of the process is just laughable,” Gordon said.

RESTORING INTEGRITY

It’s Rep. Leach’s intent to “restore the integrity of Arizona’s initiative process,” a claim he stakes out in the bill itself. HB2404 includes language declaring the need to halt fraud in the initiative system.

Leach cited Oregon, where voters approved a constitutional amendment in 2002 banning pay-per-signature circulators. He claimed the state has seen a significant decline in fraudulent signatures.

“We know from the Ninth Circuit history in Oregon… that the number of fraudulent signatures went down considerably. That’s documented,” Leach said.

Chavez, whose company collects signatures in Oregon, said Leach’s assertion is “not true at all.” Fraud still happens in Oregon.

It just happens on a pay-by-the-hour basis.

Oregon signature gatherers know they can’t claim eight hours of work and not gather any signatures, so bad apples still forge petitions to get paid, Chavez said.

“I see just as much fraud, and we police just as much fraud, in hourly circulators as in per-signature circulators,” he said.

Daniel HoSang, associate professor of ethnic studies and political science at the University of Oregon, said there were no high profile cases of fraud that precipitated voters approving a pay-by-signature ban in 2002. The measure did nothing to stamp out fraud because, as Chavez said, fraud was already being caught.

“There’s always signatures that are not certified, and the petitioner bears the cost of that. So in some ways, it’s kind of a false claim, because it’s impossible to fraudulently present signatures. They’re either valid or they’re not. So I think the answer is no. There’s a significant check that actually happens as signatures are gathered,” HoSang said.

“I would describe it as a solution in search of a problem that doesn’t exist, at least in the Oregon context,” he added.

If lawmakers want to solve the problem, they should make it easier for prosecutors to convict people for petition fraud and provide for steeper penalties, he said. Chavez noted that on the secretary of state’s website, there’s a link to a list of people who have been convicted of fraud. The link is empty, he said.

“Nobody has been convicted,” Chavez said.

Lawmakers should stop vilifying petition circulators and start talking to them about bills that would affect them.

“Let’s be clear. There’s nobody who’s collected more signatures, or overseen more signatures, than my office,” he said. “There’s no one who’s been involved in more court battles, on the ground battles, than our circulators and staff. And we’re not invited to the dialogue. According to elected officials, we’re the problem.”

A HOTBED OF ACTIVITY

Proponents of the citizens’ initiative are already starting to plan for the worst case scenario — that the bill passes the Senate and Gov. Doug Ducey signs it into law. Joel Edman, executive director of the Arizona Advocacy Network, which has been leading the opposition to the bill, said that if the bill is signed into law, they’re already looking at options.

Edman said they’re still hoping to kill the bill in the legislative process. But failing that, they’re discussing options, including using Arizona’s direct democracy processes to repeal and replace HB2404.

Citizens can block any law approved by the Legislature by gathering enough signatures to force a referendum that would put the law on hold, and force an up or down vote on the issue at the November 2018 election. Then, advocates could use an initiative to lock-in the statutes governing initiatives.

Because of another voter-approved initiative, the Voter Protection Act, any measure approved by the voters cannot be changed by the Legislature, except with a three-fourths vote in both chambers and then only to “further the intent” of the initiative. If voters approved the state’s statutes governing initiatives, lawmakers couldn’t come back and change them.

“These things are never easy,” Edman said. “You have to build a whole campaign infrastructure and everything. But I think the messaging is really easy. Because throughout Arizona’s history, people have responded poorly to attacks on the initiative process, and have responded with new protections, like the Voter Protection Act,” Edman said.

Edman said Ducey and other Republicans probably don’t want to appear on the 2018 ballot alongside those issues. That gives Edman some hope that Ducey will apply pressure on the Legislature to back off.

“I think he’s going to be put in an uncomfortable position. People will be asking him what he thinks about something on the ballot. And he’ll have to make a choice, but I don’t think he’ll oppose the chamber of commerce and side with the voters. And that’s going to be a political pickle for him,” he said.

Chavez, the owner of Petition Partners, said word is already spreading among petition circulators that Arizona is going to be a hotbed of activity in 2018.

“I think there will be a lot of folks who get on this. You could have the largest convergence of petitioners in the history of the state of Arizona to protect the citizens’ right to direct democracy,” he said.