Attorneys for the state and Republican legislative leaders are asking the Arizona Supreme Court to rebuff efforts by various organizations to void a statute that could make it harder for voters to propose their own laws.
In new legal filings, the lawyers argue that state lawmakers have an absolute right to decide that initiative petitions have to be in “strict compliance” with each election law. Prior to 2017, Arizona courts had concluded that only “substantial compliance” is necessary, a standard that allowed for voters to decide issues even with minor and often technical errors.
But Assistant Attorney General Kara Karlson who signed the legal brief, told the justices that they don’t even have to consider whether the new requirements violate the constitutional rights of voters. She said only those who have suffered some harm from the new law — or are at least immediately threatened — have a legal right to challenge it.
Karlson said that’s not the case here.
She pointed out that none of the groups that filed suit have a pending initiative which is in danger of being disqualified from the ballot based on the new strict compliance mandate. And Karlson brushed aside their claims that the law interferes with efforts to plan future ballot measures, saying that amounts to little more than “a naked assertion that they may want to circulate initiatives at some unspecified point in the future.”
And that, she said, means the case is not legally “ripe” for the court to consider.
“Plaintiffs have not come close to meeting the basic requirements for ripeness,” Karlson wrote. “Instead, they invite this court to invent a new standard that would allow a party who had suffered no harm, nor even taken a minimal step like completing a one-page application for a serial number, to challenge any state law.”
At the heart of the fight is the contention by groups like the Animal Defense League of Arizona, Planned Parenthood Advocates of Arizona, the Arizona Advocacy Network, and Friends of ASBA, short for the Arizona School Boards Association, that the Republican-controlled Legislature impaired their constitutional right to craft initiatives by making the process harder.
In the past, Arizona courts have allowed initiative drives to go forward even with errors like erroneous dates entered by signers and failure to put petition papers in the exact format. That all would change under a strict compliance standard.
A trial judge threw out the challenge to the law based on the failure of plaintiffs to show actual harm, a ruling upheld by the state Court of Appeals. That led to their bid last month to get the Supreme Court to let them make their case, even without an actual initiative in danger of being disqualified from the ballot based on the new standard.
Karlson told the justices to send them packing.
“Hypothetical harm is utterly insufficient to satisfy any ripeness standard,” she wrote.
She acknowledged that groups seeking to change state laws have to do a lot of preparatory work before even filing the paperwork to circulate petitions. That can include research, organizing, fundraising, marshaling legal and technical support and forming coalitions.
“Not one of the plaintiffs had done any of these things,” she told the court, nor did any of them even make the claim they would have taken those steps “but for the challenged law.”
Arizona has had the right of voters to propose their own laws since the first days of statehood. That’s based on constitutional provisions that voters are the ultimate “legislature” and have the power to act when their elected representatives do not.
Many business interests and the Republican lawmakers who they support have made no secret of the fact that they do not like the measures that voters have crafted and approved.
In recent years, facing legislative inaction, voters have outlawed gestation crates for pigs, placed a ban on leghold traps on state lands, allowed patients to use marijuana for medical purposes, and just two years ago, increased the state minimum wage.
In her earlier arguments, Roopali Desai, one of the attorneys for the challengers, told the court it would be a violation of individual rights if initiative organizers had to wait until they were in danger of having a measure thrown off the ballot before challenging a law they contend interferes with their legal ability to craft their own laws. And she said that just the chilling effect of the new requirements on groups that might want to propose their own laws is sufficient for courts to decide the legality of the new standard.
The justices gave no date to consider the issue.