Lawsuit filed to strike initiative restriction law

Claiming lawmakers acted illegally, a newly organized group is asking a judge to void a key change in laws governing the right of voters to enact their own laws.

The lawsuit filed Thursday in Maricopa County Superior Court charges that both the Arizona Constitution and a series of court rulings require that initiative organizers need be only in “substantial compliance” with state election laws to qualify their proposals for the ballot. That provides a certain amount of leeway for what judges have concluded are errors which do not affect the ability of voters to understand what they are signing and the issues before them.

By contrast, the legislation adopted at the behest of business interests requires “strict compliance” with every law. That change, if it takes effect, would allow — and perhaps require — a judge to quash petition drives for what could be technical violations.

Recognizing a trial on the legal issues may take time, attorney Roopali Desai is asking the court to issue an injunction blocking the measure from taking effect as scheduled on Aug. 9.

But Desai is not leaving the fate of the law to the courts.

Separately, organizers of a group called Voters of Arizona filed the paperwork to give voters the final work on the change in the law approved by the Republican-controlled legislature. They also have a separate petition drive to void another change, this one prohibiting initiative organizers from paying petition circulators based on the number of signatures they gather.

Backers of the two petition drives have until the end of business on Aug. 8 to submit at least 75,321 valid signatures. If they succeed, the measure cannot take effect unless and until voters ratify at the November 2018 general election what lawmakers have done.

The petition drives ensure that the issue, at least as to the new strict compliance standard, does not die if courts do not rule in her favor. But Desai said she believes that judges will side with her clients and against attorneys for the state.

“It’s actually a constitutional issue,” she said. “There’s a very clear separation of powers between what the legislature can do and what’s a constitutional requirement.”

There already is a strict compliance requirement for referenda, the kind of thing that her clients are using to put the two new laws before voters. Courts in general have concluded that referenda are different because simply gathering enough signatures is enough to at least delay enforcement of something approved by the legislature until the next election.

By contrast, initiatives are designed to propose entirely new laws, often in situations where the legislature has refused to act. And Desai said a requirement for strict compliance for initiatives “is not articulated anywhere in the Arizona Constitution or the courts that have interpreted the Constitution.”

What this all comes down to, she said, is that Republican lawmakers and their allies — her lawsuit specifically mentions the Arizona Chamber of Commerce and Industry and Arizona Public Service —

do not like the fact that voters can create their own laws. And that power is amplified by the fact that voters in 1998 amended the Arizona Constitution to specifically prohibit lawmakers from altering or repealing what had been approved at the ballot.

“They’re not happy with the Voter Protection Act,” Desai said, calling the new law being challenged “an end-run around the substantial compliance standard by legislating in an arena that is not within their purview.”

The litigation will get a fight from the legislature.

House Speaker J.D. Mesnard acknowledged the courts have allowed measures on the ballot that only substantially comply with election laws. But he said that’s only because the legislature has not enacted a contrary law — at least not until now.

“I think the courts will say that’s the prerogative of the legislature,” Mesnard said.

His Exhibit No. 1 argument for strict compliance involves a 2012 ballot measure seeking to make permanent what had been a temporary one-cent increase in the sales tax.

As required, backers of the initiative filed a copy of what they intended to circulate with the secretary of state’s office. But it turned out that what was being circulated was different, failing to mention who gets some of the money that would be generated.

Ken Bennett, then the secretary of state, said that disqualified the measure from the ballot.

But a trial judge noted — and the Supreme Court agreed — that Bennett’s office did get an accurate version, albeit on computer disk.

The judges said the incorrect paper version amounted to a clerical error and that initiative supporters “substantially complied” with the legal requirements to begin circulating petitions.

Mesnard said that shows why a strict compliance standard is needed.

“That would never be acceptable at the legislature,” he said. “We are talking about making law.”

The plaintiffs in the legal challenge to the change in the standard have more than a passing interest in the issue.

They include Matt Madonna who is the former president of the regional division of American Cancer Society. It was his organization that was behind a successful ballot effort to ban smoking in public places.

Sandy Bahr is chapter director of the Sierra Club which has been involved in various ballot fights including a ban on leghold traps on public lands and creating an optional system of public financing for state and local elections.

And the Animal Defense League helped get voter approval of a ban on “gestation crates” for calves and pigs.

Desai said there is no legal challenge planned to the ban on paying petition circulators on a per-signature basis, at least at this time. That means the fate of that law will depend on the referendum drive.