Ducey signs bill requiring ‘strict compliance’ for citizen initiatives

Gov. Doug Ducey signed a new law today that even the head of his own Republican Party wrote would do pretty much what Democrat foes charged was the goal all along.

HB2244 overturns not only statutes but Supreme Court case law, which says that efforts by voters to propose their own laws need to be only in “substantial compliance” with election laws to go on the ballot. Under HB2244, any measure not in “strict compliance” could be challenged and stopped before voters ever get a chance to weigh in.

In a prepared statement, Ducey noted that the Arizona Constitution limits the ability of lawmakers to alter what voters approve at the ballot.

“This commonsense legislation preserves the integrity of the (initiative) process by ensuring that those seeking to make lasting changes to our laws comply with current laws,” he said.

Arizona Republican Party Chairman Jonathan Lines, in a newsletter Friday to party faithful, said the GOP-controlled Legislature enacted something that “would make it possible for ballot initiatives to be thrown out for minor errors regarding language and paperwork” – precisely what Democrats charged during several hours of debate this week over the measure.

However, party spokeswoman Torunn Sinclair said Lines was just repeating what had been written in a news story and it does not reflect his views on the bill.

The change to “strict compliance” is not academic.

Had this requirement been in place in 2012, voters would not have been given a chance to decide whether to make permanent a one-cent surcharge on state sales taxes, with most of the proceeds earmarked for education.

And just this past year, voters got a chance to decide whether to legalize marijuana for recreational use when the Supreme Court concluded that the initiative’s petitions substantially complied with what Arizona law required.

In both cases, voters decided to reject the proposals.

But it was voter approval last November of the minimum wage increase that led the Arizona Chamber of Commerce and Industry to rein in the initiative process.

The Chamber did not mount any major offensive against Proposition 206, spending only about $50,000 to urge its defeat. Instead, the organization spent close to $1.5 million to quash Proposition 205, the recreational marijuana measure.

Chamber officials conceded at the time that voter sentiment on the wage question was against them, with spokesman Garrick Taylor saying it made no sense to spend money on a losing effort. Instead, they hired attorneys after the fact to try to convince the Arizona Supreme Court to overturn the people’s vote.

That failed. And the 1998 Voter Protection Act bars lawmakers from repealing the law.

That left the goal of putting what Chamber President Glenn Hamer called “guardrails” around the initiative process.

Those reforms were originally part of a single measure sponsored by Rep. Vince Leach, R-Tucson. But the bill was divided up into three separate measures.

That, in turn, means that foes of the package would have to launch three separate petition drives to give voters the final say. Even Rep. Ken Clark, D-Phoenix, who has been at the forefront of fighting what the Republican majority approved, said that pretty much quashes any such referendum efforts.

Ducey has already signed a measure making it illegal to pay petition circulators based on the number of signatures they get. Supporters argued that the current practice invites fraud.

Paid circulation remains an option, but only if done on some other basis, such as paying people hourly.

And a measure awaiting final Senate approval this coming week would make initiative organizers financially responsible for incidents of fraud or forgery committed by paid circulators, regardless of whether there is evidence that the organizers knew what the circulators were doing.

In all three instances, however, the changes apply only to initiatives. Politicians including lawmakers and the governor himself, remain free to use paid circulators, are not subject to fines for acts of circulators, and have no risk of having their nominating petitions thrown out for failure to strictly comply with laws.

Leach said that distinction is merited because politicians can be thrown out of office every two or four years. There’s also the fact that the Voter Protection Act keeps lawmakers from undoing what their constituents have decided to enact.

That’s not absolutely true.

Technical fixes that “further the purpose” of the underlying measure can be enacted if proponents can get a three-fourths vote of both the House and Senate. And if lawmakers believe an initiative is having harmful effects that voters could not have foreseen, they can put the issue back on a subsequent ballot.

There is some possibility that the courts could void the change to “strict compliance” if the justices believe that they – and not the legislature – decide how to judge the constitutional rights of voters to propose their own laws.

In those prior cases, the Supreme Court found “substantial compliance” to be the proper standard.

For example, foes of the recreational marijuana measure argued that the legally required summary of no more than 100 words did not properly summarize the initiative’s would-be impact on everything from driving, child custody and labor laws. And they contended the text itself was too flawed to send to the ballot.

Maricopa County Superior Court Judge Jo Lynn Gentry, however, concluded that initiative proponents did the best they could with that 100-word limit. And the Supreme Court said the petitions were in substantial compliance with what Arizona law requires.