What is now Proposition 305 will not only put the fate of school voucher expansion into the hands of Arizonans, but is also likely to set precedent on how the Voter Protection Act applies to referenda.
The argument is sure to be made that whatever voters decide in the 2018 general election–approval or rejection–is protected, and any result may be less than ideal for those who want to see the expansion proceed.
Let the speculation begin.
Roopali Desai, an attorney representing expansion opponents Save Our Schools Arizona, said the question of voter protection is really a discussion about the power of the people in relation to the Legislature.
“This conversation is interesting because there is the legal component – what does the Constitution mean and require with respect to referenda – but there is also another question: From a common-sense perspective, how does this come about procedurally?” she said.
A court will ultimately have to settle this debate, but getting to that point is complicated, she said. That comes later.
The Voter Protection Act is currently interpreted in the context of initiatives, Desai said, because those measures are more common relative to referenda, but also because the state Constitution is far more clear with regard to initiatives.
While the Constitution indicates initiatives are voter-protected if approved, it is not so clear-cut on referenda, said attorney Jim Barton, a former Arizona assistant attorney general who now specializes in areas of political and government relations law.
“It says that if citizens decide a referendum, it’s voter-protected,” Barton said. “The trick is we don’t know if that means only referenda referred by the Legislature or if it means a citizen referendum as well.”
Additionally, what the Voter Protection Act means for a “no” vote is not entirely clear.
To simply say a referendum “decided” by the voters suggests to Barton that a vote in the negative would be afforded the same protections as a “yes.”
And that raised yet another question in Barton’s mind: How far would the “no” go?
If Arizonans say no to the expansion of the Empowerment Scholarship Accounts as proposed in Senate Bill1431 and a slightly different bill is brought up in a subsequent session of the Legislature, would that legislation also be nullified because of the referendum?
Barton said he didn’t know.
No one seems to know for sure.
Whichever side wins will almost certainly make the argument the Voter Protection Act applies, but the argument seems stronger for a “yes” vote from the perspective of Kory Langhofer, an attorney who represents Americans For Prosperity, a group funded by the pro-voucher Koch Brothers.
Contrary to Desai, Langhofer said an argument for a “no” vote would be weaker, but a success at the ballot for the pro-voucher crowd does not come without its caveats.
Barton said if the expansion becomes protected, so too would the cap of 30,000 students included in SB1431. Arizona has roughly 1 million public school students.
In order to amend a voter-protected measure, legislators must pass an amendment with a three-fourths supermajority and whatever change they make must further the intent of the voters.
If the cap becomes protected, an effort to either repeal or expand it would arguably have to meet those requirements or face a legal challenge.
“If your point is that the VPA would increase risk for proponents,” Langhofer said, “Yes, I think that’s correct.”
He’s not worried, though – that would be “an overstatement” – because he said he still believes the referendum will not ultimately make the ballot.
Langhofer and attorney Timothy La Sota have filed a lawsuit alleging numerous violations, including a variety of handwriting irregularities, the use of ditto marks in address fields, incomplete or inconsistent dates, failure to properly register paid circulators and reference to the nonexistent “fifty-third session of the Legislature.”
Technically, the legislation in question, SB1431, was approved during the first regular session of the 53rd Legislature. Mistakenly referring to the session constitutes a violation under strict compliance, according to the suit, and so the error should render all petitions invalid.
Langhofer said the question of how the Voter Protection Act applies could stretch the legal fight on school vouchers into 2019, well after next year’s election, further muddling the debate.
And that, too, could be problematic for the pro-voucher side.
“This issue could be used to sow confusion,” he said. “When things get complicated like this, people tend to vote ‘no.’”
And that’s exactly what Desai expects.
But then we’re back to the procedural logistics of ensuring voter protection.
If the voters vote “no” as SOS Arizona is asking them to do and the law is overturned, a challenge based on the Voter Protection Act would be likely if the Legislature later tried to enact it in substantially the same way, Desai said. For example, she would expect a challenge if the legislation was raised again with a different cap.
She said the argument would be made that “you can’t undo the vote of the people by going back after an election and simply reenacting the same law.”
But the pro-voucher legislators could preempt a bad day at the ballot by repealing the law before the voters ever have their say.
Langhofer said he is not aware of any discussions regarding that option.
Sen. Debbie Lesko, R-Peoria, who sponsored SB1431 said she has not decided on whether repeal – or any road ahead – would be an option.
“It’s way too early,” she said. “I’m waiting to see what happens on the legal front.”
But the repeal option is being discussed around the Capitol, and Barton, a former assistant attorney general, said it’s been done before, though under very different circumstances.
Barton pointed out how HB2305 in 2013, “an omnibus bill” composed of several controversial elections measures approved in the final hours of the 2013 legislative session, was repealed after it was put to the ballot. But Barton added that was a “giant” bill that was revisited in pieces and never put back in place in its entirety, again leaving the question of what an attempt at a small change to an ESA expansion bill might yield legally.
And Barton said it could do political damage to those who try.
“That would seem to essentially eliminate the right of the citizens to refer things,” he said. “It just seems wrong that you would take away all of that effort by a vote of the Legislature when this is supposed to be a check on the Legislature’s power.
“And it would be nice if the Legislature was somewhat responsive to the will of the citizens. Pollyanna, I know.”