Secretary of State Katie Hobbs is urging a federal judge to throw out a challenge to a law that could make it more difficult for groups to put initiatives on the ballot.
In new legal filings, attorneys for Hobbs are defending a 2014 law which says that if petition circulators do not show up in court then all the signatures they gathered will not be counted, regardless of whether it turns out they actually were valid. Hobbs said the law serves a legitimate state purpose and does not unduly burden the right to circulate petitions or to vote.
Hobbs also brushed aside arguments that the law violates the First Amendment by making it less likely that initiatives will qualify for the ballot.
“The First Amendment does not mandate that ballot access be easy,” wrote Assistant Attorney General Joseph La Rue who is defending her and her office.
“There is no first Amendment right to place an initiative on the ballot,” he argued in the new legal papers to U.S. District Court Judge Susan Bolton. “The fact that a regulation makes it less likely that initiatives will be enacted is therefore not constitutionally determinative.”
The 2014 law, which passed without significant debate – and which Hobbs voted for as a state senator – spells out that paid circulators and those who do not live in Arizona must first register with the secretary of state or their signatures collected do not count.
More significant, it allows those trying to keep a measure off the ballot to subpoena those circulators. And if any circulator who has to register does not show up, then all the signatures that person gathered can be struck, potentially leaving the petition drive short of its goal.
Attorney Sarah Gonski represents several individuals and groups that have been involved in prior ballot measures. One of the plaintiffs is Jessica Miracle, a paid petition circulator on the 2018 proposal to impose new renewable energy mandates on utilities.
Subpoenaed by foes of the measure, the lawsuit says Miracle could not attend because her children were sick, she did not have her own transportation to Phoenix, and no one would tell her clearly how many days she would need to be in Phoenix. The result, according to Gonski, was all of the 2,604 signatures Miracle gathered were invalidated.
The measure still made the ballot but was defeated.
Hobbs, in the new legal filings through her attorneys, said the 2014 law is simply an extension of existing laws designed to protect the integrity of the initiative process.
For example, La Rue wrote, one requires a circulator to personally witness each signature.
“This requirement discourages those signing petitions from forging other electors’ signatures on petition sheets,” the legal papers state. Similarly, he cited the provision that says circulators must be qualified to register to vote in Arizona, meaning they cannot be felons unless their civil rights were restored.
“This helps ensure circulators have not been convicted of crimes that might call into question their trustworthiness,” La Rue wrote.
All of that, he said, goes to the nature of the 2014 law which requires Hobbs to remove signatures collected by circulators who have not complied with subpoenas.
“This assists the secretary in fulfilling her statutory duty to uphold the integrity of the initiative process for everyone by only certifying for the ballot those initiatives that have fully complied with applicable legal requirements and gathered sufficient signatures,” La Rue argued.
A spokeswoman for Hobbs said the secretary “has an obligation to enforce and defend duly enacted state law in good faith” but declined to comment on the specifics of the law or the lawsuit.
This isn’t the first challenge to the requirement.
A separate lawsuit was brought in state court by attorneys for the 2018 “Outlaw Dirty Money” campaign after a trial judge ruled there were no longer enough valid signatures after several petitions were disallowed due to the failure of circulators to show up. Attorney Kim Demarchi argued in that lawsuit that signatures should be tossed only when there is a “valid objection” to the circulator or the “need for a circulator’s testimony.”
But Supreme Court Justice John Lopez, writing for the unanimous court, said the constitutional right of people to propose their own laws and constitutional amendments “is, and must be, subject to reasonable regulation.” And Lopez said requiring circulators to appear in court – and tossing their signatures if they do not show – “furthers the constitutional purpose of the initiative process by ensuring the integrity of signature gathering by reasonable means.”
No date has been set for a hearing on the latest federal court lawsuit.