Foes of universal school vouchers told a judge Friday she cannot consider a challenge brought by those who want to keep voters from getting the last word on the plan.
Roopali Desai told Maricopa County Superior Court Judge Margaret Mahoney that the lawsuit to kill the referendum is based on claims that there are a variety of flaws in the petitions and the signatures leave circulators without sufficient signatures to put the issue on the 2018 ballot.
But Desai, representing Save Our Schools Arizona, said even if what challengers claim is true — a point she does not concede — it really does not matter.
She pointed out that the challenge to the referendum was filed by two individuals. But the long-standing Arizona law allowing individuals to challenge petitions actually was repealed by lawmakers in 2015.
Desai acknowledged that lawmakers did vote earlier this year to restore that right.
She noted, though, the effective date of that law was Aug. 9. What makes that important, Desai told Mahoney, is that Save our Schools started its petition drive on May 11 and submitted them to Secretary of State Michele Reagan on Aug. 8 — all during the time when there was no right of individuals to challenge petitions.
“This court does not have jurisdiction to hear the claims before it,” she told the judge. And that, Desai argued, means the challenge fails and the issue goes on the 2018 ballot.
Attorney Kory Langhofer, representing those who support universal vouchers — and who do not want a public vote — urged Mahoney to read the law to say that the law that applies is the one in effect on Aug. 23, the day the challenge was filed. And by that point, there was once again a right of individuals to sue on that date.
More to the point, he told the judge that lawmakers voted to reinstate the right of individuals to sue before it approved expansion of the voucher program, the legislation at issue here. So he contends Save Our State Arizona should have known that right to sue would be taking effect on Aug. 9
“There’s been no sort of surprise or trickery by the Legislature,” he said.
Hanging in the balance is whether voters get to decide if there will be a big expansion in who is eligible to get a voucher of state funds to attend private and parochial schools.
The original voucher law, approved in 2011, was designed to aid students with disabilities who could not get their needs met at traditional public schools or charter schools, which also are public schools. Parents of eligible children were given what is formally known as an “empowerment scholarship account,” essentially a voucher of state dollars to pay for tuition, tutoring and other needs.
Since that time, supporters have widened eligibility incrementally to where vouchers are now available to foster children, residents of Indian reservations and any student attending a school rated D or F.
About 3,500 children now get such vouchers.
The law at issue here started as a bid by Sen. Debbie Lesko, R-Peoria, to remove all the restrictions, essentially making vouchers available to all 1.1 million students in Arizona public schools.
That proved to be a step too far for even some voucher supporters. So what was approved earlier this year by the Republican-controlled Legislature and signed by Gov. Doug Ducey eliminates eligibility barriers but places a cap of 30,000 vouchers by 2023.
The Arizona Constitution gives anyone opposed to whatever the Legislature has approved 90 days after the end of the session to gather signatures to refer the measure to the ballot. Desai said that’s what happened here.
“Thousands of Arizonans, including teachers, parents and concerned citizens, took to the streets to accomplish something that nobody thought they could,” she told Mahoney, gathering more than 110,000 signatures “in the middle of an Arizona summer.”.
Secretary of State Michele Reagan ultimately concluded that the petitions had more than the minimum 75,321 valid signatures needed. Desai said that automatically puts the voucher expansion law on hold until voters get a chance next November to decide through what would be Proposition 305 whether to ratify or reject what the Legislature has approved.
“My client is entitled to run its campaign and have its referendum on the ballot to have the people decide whether the law that was passed by the Legislature is good policy,” Desai said.
If Mahoney allows the lawsuit to continue, that does not mean the referendum will be removed from the ballot. She would first have to accept Langhofer’s argument that there are not enough valid signatures to leave the petition drive short of the minimum required.
For example, he contends that some circulators committed fraud, lying to would-be signers about what the referendum would do.
“We think if you say to a voter, ‘This measure is going to take $24 million out your public schools’ — and that’s just false, it’s not going to — and you’re inducing people to sign your petition sheets that way, that’s fraud,” he said.
But Andy Gaona, who also is representing Save Our Schools, has countered there’s no actual evidence before the judge that anyone was defrauded.
Langhofer also wants Mahoney to throw out all petitions where the required signature of the person notarizing the document does not precisely match the name on the notary’s official stamp. That drew a skeptical response from the judge.
“People’s signatures are not static,” she told Langhofer.
More technical is Langhofer’s argument that the referendum petitions said the voucher expansion legislation at issue — the one on which they are seeking a public vote — was enacted during the “53rd session of the Legislature.” In fact, though, the bill was approved during the “first legislative session of the 53rd Legislature,” with each “legislature” running two years.
That is significant because Arizona law requires that referendum petitions referendum tell would-be signers not just the bill number of the measure at issue but which legislative session that bill was approved. And referendum petitions are required to be in “strict compliance” with all laws.
Gaona said no one was confused about when the legislation at issue was approved and what are the issues involved.
A ruling is expected within 60 days. Whichever side loses is virtually certain to appeal.