An attorney for the state asked a federal judge Wednesday to uphold a law that challengers say is designed to make it more difficult for people to propose their own laws.
Assistant Attorney General Joseph La Rue acknowledged that the measure requires a judge to throw out all the signatures of paid or out-of-state circulators of initiative petitions if that person does not respond to a subpoena, regardless of whether the signatures gathered are actually valid. La Rue argued, however, that restriction is necessary to protect the integrity of the election process.
But U.S. District Court Judge Susan Bolton questioned why, if such automatic disqualification is necessary, that same provision does not apply when initiative signatures are collected by volunteers who are Arizona residents.
Potentially more significant, the judge pointed out that the concern of legislators about the practices of out-of-state and paid circulators does not seem to extend to petitions for candidates for public office – including themselves.
“There has to be a rational basis for this distinction,” Bolton told La Rue. And she said there is “no rational distinction” between petitions gathered for candidates and those for initiatives.
La Rue countered that there’s no requirement for the Legislature to address each and every problem with each and every kind of petition for this law to be valid. Anyway, La Rue said, there is no evidence that lawmakers, in imposing the restriction only on initiatives, had a “bad motive.”
But Elisabeth Frost who represents challengers, told Bolton that she should block the state from enforcing the law because it infringes on First Amendment rights.
She said the restrictions make it more difficult for those proposing their own laws to find circulators. And Frost said if measures cannot make the ballot, then Arizona voters don’t get a chance to decide the issue.
“When you regulate circulators and you don’t get on the ballot, that’s when you implicate the First Amendment,” she said.
Arizona law has always required that those who circulate petitions respond to subpoenas when there are challenges.
But in 2014 lawmakers added a new twist. They said if paid or out-of-state circulators do not show up, then a judge is required to disqualify all the signatures that person collected.
Frost told Bolton that’s different than other election cases where attorneys can argue whether that person’s presence actually is necessary, whether there’s a “good faith basis” for the subpoena, and whether signatures should be tossed if the circulator does not appear. The result, Frost said, is that initiative foes can use the new law to issue multiple subpoenas in hopes that a certain percentage of circulators won’t show up, allowing them to kill the measure without actually having to campaign against it.
“That’s the way the law is designed to work,” Frost said.
The attorney pointed to one instance last year where foes of a clean energy initiative issued subpoenas for more than 1,000 circulators. But when most showed up, Frost said, the challengers called “virtually none” of them to the stand and the measure went on the ballot.
“It doesn’t sound like somebody had a good faith basis” for the subpoenas, Bolton agreed. And she even suggested there might have been an abuse of the subpoena process in that case.
But the judge questioned whether that can be the basis for her to block the state from enforcing the law and whether it violates the U.S. Constitution.
That latter question is crucial for Bolton.
Last year another group – this one proposing to put a ban on “dark money” political contributions – challenged the same law after a trial judge disqualified the signatures collected by 15 circulators who did not respond to a subpoena. That left the measure short of the needed signatures.
In that case, attorney Kim Demarchi argued that a circulator’s signature should be tossed only when there is a “valid objection” to the circulator or the “need for a circulator’s testimony.”
But Arizona Supreme Court Justice John Lopez, writing for the unanimous court, said the right in the Arizona Constitution of people to propose their own laws and constitutional amendments “is, and must be, subject to reasonable regulation.” Lopez said requiring circulators to appear in court and tossing their signatures if they don’t show “furthers the constitutional purpose of the initiative process by ensuring the integrity of signature gathering by reasonable means.”
Both Frost and La Rue told Bolton she is not bound by that decision, particularly as the Arizona Supreme Court decided it based solely on state constitutional issues and not the federal First Amendment. But La Rue told the judge she should consider the ruling “persuasive.”
If Bolton enjoins the state from enforcing the 2014 law, that still leaves the underlying statute that says circulators can be called into court, but with protections against blanket subpoenas and without the requirement for automatic disqualification of all signatures if the person does not appear.
The judge gave no indication when she will rule.
That 2014 law was an early version of what has become a series of changes to the rules that govern the initiative process for people to propose their own laws and constitutional amendments.
That includes a 2017 measure pushed through the Republican-controlled Legislature to require that all initiatives be in “strict compliance” with every election law before they go to voters. That overruled prior court decisions which said that initiatives need only be in “substantial compliance” with the law to survive a legal challenge, a standard that allowed for minor errors.
And earlier this year lawmakers imposed new requirements on paid circulators and the organizations that hire them. These range from a mandate to provide a phone number and email address to insisting that when petitions are turned in they are grouped by circulators.