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Supreme Court rejects appeal in ‘dark money’ ballot disqualification

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The Arizona Supreme Court late Wednesday rejected a last-ditch effort by supporters of a ban on “dark money” in political races to put the issue to voters in November.

In a brief order, the justices rejected arguments by attorney Kimberly Demarchi that Maricopa County Superior Court Judge Teresa Sanders improperly and illegally refused to count the signatures on several petition sheets. That ruling clearly left the initiative with fewer than the 225,963 valid signatures necessary to qualify for the ballot.

The initiative would have asked voters to overturn existing laws that allow groups established under the Internal Revenue Code as “social welfare organizations” to spend money to influence state and local races without disclosing the source of their donors. Instead, any individual that put in at least $2,500 would have to be named.

That leaves in place not only the state law shielding donors who give to organizations seeking to affect state and legislative elections, it also leaves intact another law, approved by the Republican-controlled Legislature earlier this year, prohibiting local governments from imposing their own disclosure requirements. That most immediately overruled an ordinance approved by Tempe voters on a 91-9 margin.

Demarchi was challenging the law that requires automatic disqualification of petitions when circulators do not show up.

If nothing else, she argued that the law does not comply with court rules that the people issuing the subpoenas show they have been properly served. And Demarchi said it was wrong to let challengers to the initiative wait until 11 days before the trial to even mention that they planned to subpoena circulators.

“The voters of Arizona are being deprived of even the opportunity to consider the proposed amendment referred for their consideration by hundreds of thousands of their fellow citizens,” Demarchi told the justices. “This result should not be permitted to stand.”

The justices saw it otherwise, upholding the law without comment.

Even if Demarchi had prevailed, the odds still were against the measure making it to the ballot.

A random check by county recorders of the signatures collected concluded that the petitions came up 2,017 short of the 225,963 to put the issue on the ballot, even before Sanders had tossed the other petitions.

Chief Justice Scott Bales, in writing the order keeping the measure off the ballot, said their finding in favor of Sanders on the petition-disqualification law made it unnecessary for them to look at other legal issues related to the initiative.

One comment

  1. Now that the two initiatives that progressives favored are off the ballot maybe that will free up some legal resources to challenge Prop 126’s ballot legitimacy (see below). Prop 126 is a proposed constitutional amendment to ban all sales taxes on services. It would severely limit tax revenue options to fund K-12 schools. If graduated income tax increases are off the table and the retail sales tax rate is simply politically too high, what are we to do? Will we watch K-12 further decline so that only the children of the rich get a decent education in AZ?

    Prop 126 will likely pass without some legal challenge to its ballot legitimacy simply to publicize the breath-taking scope of state revenue restriction. This is Koch Donor Network dream legislation to achieve their libertarian small government agenda.

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    Prop 126 might violate the “separate amendment” rule. The last sentence in Section One of Article XXI (21, the amending article) requires that all substantive constitutional changes “shall be submitted in such manner that the electors may vote for or against such [changes] SEPARATELY” [emphasis added]. This is judicially interpreted as requiring a separate proposition for each substantive change (amendment) in the constitution.
    Prop 126 will do two things: 1) It will create Sec. 25 of Art. IX (9, the revenue article) which bans any sales tax on services. 2) It will silently, and implicitly amend the first sentence in Section One of Art. 9 (the very same revenue article). That first sentence is: “The power of taxation shall NEVER be surrendered, suspended, or contracted away.” [emphasis added]

    That first sentence is a restriction on what the legislature can do. The people of Arizona are legally acting as the ultimate legislature of the state when amending its constitution. This means they cannot amend the state’s constitution is such a way as to leave a big chasm of contraction in the middle of that constitution. There can be no doubt that Prop 126, no matter how it is construed, does indeed either suspend, or surrender, the power of taxing services. That is in direct, explicit contradiction of the words of the first sentence in Section One of Art. 9.

    If Prop 126 implicitly changes the scope of Section One’s first sentence (Art. 9), then it is definitely a substantive change in the Arizona Constitution. Section One should be changed to reflect that very significant change. The founders were very serious about the intent of Section One’s first sentence. I don’t think we can change it’s scope willy-nilly in such an indirect, implicit, and casual manner. At the very least the voters should be advised as to everything they are doing in voting ‘yes’ on Prop 126. And that’s a requirement that the founders were also very serious about in drafting the last sentence of Sec. One of Art. 21.

    Even if the judges were to find that Prop 126 does not violate the “separate amendment” rule, the text of this proposition fails to insert an exception clause into Sec. One of Art. 9. The drafters of a 2000 proposition (that amended Sec. 18 of Art 9) thought it necessary to at least insert an exception clause into the second sentence of that very same Sec. One of Art. 9. That inserted exception clause added “Except as provided by Section 18 of this article” at the beginning of Sec. One’s second sentence.

    If the drafters of Prop 126 had included a section that added the words “Except as provided in Section 25 of this article” then Prop 126 might well pass muster as a single amendment proposition if challenged in court. But without even a Section One exception clause insert in the text of Prop 126, it doesn’t seem logical that a judge could allow this proposition to stay on the ballot in its current form. You’ve got to tell the people what they’re voting to do.

    Sadly, some civic group leaders are aware of Prop 126’s potential “separate amendment” problem. But, #1, the funds of almost every progressive civic group are already allocated to cope with the costs of the November election. (The Center for Law in the Public Interest?) But, #2, as I said above, now that the two initiatives that progressives favored are off the ballot maybe that will free up some legal resources to challenge Prop 126’s ballot legitimacy.

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