State senators voted 16-14 Wednesday to require judges to void citizen-backed initiatives if they are not in “strict compliance” with every requirement of Arizona election law.
HB 2244, approved by the Republican-controlled Senate with only one GOP lawmaker dissenting, would scrap existing laws and long-standing court rulings which say that groups seeking to create statutes at the ballot box need only “substantial compliance” with the law. That has been based on findings by judges that the intent of circulators and signers was clear and that voters were not deceived.
Sen. Martin Quezada, D-Glendale, said the changes will make it more difficult for groups to get their questions before voters.
He said it means that technical violations would void otherwise legitimate petition drives. And Quezada sought to narrow the scope of the legislation.
For example, Quezada proposed that a petition could be voided if the text of a ballot measure submitted to the secretary of state is not identical to what’s being circulated. But other errors, like stapling a copy of the text to the petition instead of having it on the petition itself, would be judged under the looser “substantial compliance” law.
That proposal was rejected.
But Republicans were more sensitive to criticism that adopting a “strict compliance” requirement could lead to invalidating an initiative solely because the margins are too narrow or the size of the typeface is too small.
They agreed to an amendment by Sen. Steve Montenegro, R-Litchfield Park, requiring the secretary of state to prepare a sample initiative form. More to the point, it spells out that circulators are presumed to be strictly complying with the law if they use that form.
Montenegro said this should take care of problems that can occur when initiative backers create forms but reproduce them using a printer or copier that might spit out versions that don’t meet those margin and typeface mandates.
“If any committee goes on that site, downloads that form, uses that form, they’ll have ‘safe harbor’ because they are strictly complying to what that initiative petition should look like,” he said.
Those changes, however, were insufficient to satisfy Democrats who said this bill — along with two others being pushed by Republicans — is simply an attack on the right of voters to propose their own laws.
Sen. Steve Farley, D-Tucson, said the framers of the Arizona Constitution created the initiative process to ensure voters have the opportunity to act. He argued that quashing ballot efforts because they don’t meet certain technical requirements violates that right.
“I don’t care if this is scrawled on the back of a piece of bark peeled off a cottonwood tree,” Farley said. “I want these petitions to be accepted if they are genuine electors.”
Farley said he believes the measure will be found unconstitutional.
Sen. Sylvia Allen, R-Snowflake, however, said the additional requirements are necessary.
She said the 1998 Voter Protection Act bars lawmakers from repealing or significantly altering anything approved at the ballot. That constitutional measure, approved by voters, followed a decision by lawmakers the prior year to effectively repeal a 1996 law legalizing the medical use of marijuana and other otherwise illegal drugs.
“There is no way now to protect the people if there is unseen consequences in initiatives that are passed,” Allen said.
Quezada said that is false.
He said lawmakers, with a three-fourths vote of both the House and Senate, can amend voter-approved measures to fix technical problems. The only requirement is that the change “furthers the purpose” of what voters approved.
And Quezada said there is a remedy if lawmakers truly believe that an initiative is harmful and should be repealed: Send the measure back to voters, something that needs only a simple majority.
Quezada said that is why it is called the Voter Protection Act.
“It doesn’t protect us. The people are being protected from us,” Quezada said.
HB 2244, which now needs House approval, is part of a three-bill package being pushed by the Arizona Chamber of Commerce and Industry and other business interests in the wake of the decision by voters last year to increase the state minimum wage immediately to $10 an hour, going to $12 an hour by 2020.
HB 2404, forbidding paying petition circulators on a per-name basis, already was signed by Gov. Doug Ducey. And SB 1236, awaiting debate, would make the organizers of initiative drives liable for fines for violations of election laws committed by petition circulators.
Backers of the changes said they are trying to protect the integrity of the initiative process. But Allen made it clear she is focused in particular on the newly approved minimum wage hike.
Allen said the Legislature cannot fix the unforeseen consequences of the wage hike.
“I have so many small business owners not knowing what they’re going to do to face this bill,” Allen said. “And they were outnumbered in that election by those who take these wages.”
Sen. Andrea Dalessandro, D-Tucson, said she foresees a legal challenge if Ducey signs this measure into law. She said it is up to the courts, and not the legislature, to decide how to interpret the constitutional right of voters to propose their own laws.
“And it will yet again waste taxpayers’ money like we’ve done so many times,” Dalessandro said.
Montenegro tacked on another amendment to require the secretary of state to prepare a handbook of rules and regulations for initiatives ahead of each election and make that available on its web site. He said that should help initiative backers be in strict compliance with the law.
But there’s a political element to all of that: Montenegro already has announced he intends to challenge incumbent Michele Reagan in next year’s GOP primary. And Reagan was the subject of an investigation last year by the attorney general’s office after she failed to update the broader election manual ahead of the election despite a requirement that the manual “shall” be updated before every election.”
Michael Bailey, the chief deputy attorney general, acknowledged that Reagan adopted a unique interpretation of that law. But he declined to pursue the matter, saying the current law on handbooks is not absolutely clear and, no matter what, Reagan committed no criminal offense.