Three legislative proposals that are each designed to independently scale back the lawmaking powers of voters could, in tandem, upend Arizona’s ballot initiative and referral system.
Several factors are standing in the way of these measures stacking on one another, but if voters approve them all, they could lead to incredibly lengthy ballots for years to come, drive up the cost of elections, and legislators would be able to make changes to voter-approved laws with only a simple majority.
Opponents of the two measures in the House and one in the Senate invoke the term “voter suppression” in discussing them, and the few supporters who have testified publicly say they want to keep voters in check and set a single-subject standard for the ballot that the Legislature faces.
At issue is the 1998 Voter Protection Act, designed to prevent lawmakers and the governor from amending or repealing voter-approved laws.
Thomas Basile, an Arizona lawyer who worked as Mitt Romney’s attorney for his 2012 presidential campaign, said he did not see any problem with what the referrals would accomplish since initiatives under the Voter Protection Act have reached the status of “super law” and made voter-approved laws “practically immune from any modifications.”
He said the two proposals in the House “would correct this pretty striking asymmetry and restore the equilibrium established by the original state Constitution.”
More voter decision making
The House has several measures that would not only remove some power of the voters, but could potentially work in unison to cause voters more harm.
House Speaker Rusty Bowers, R-Mesa, wants to ask voters to put every ballot proposition approved after 2020 on the ballot again for reauthorization every 10 years. Additionally, every approved proposition from 1994 to 2018 would go through a reauthorization process 30 years after enactment. So the three approved laws in 1994 would be referred back to the ballot starting in 2024 and every 10 years thereafter. The three successful propositions from 1994 are exempting livestock from property taxes, increasing the tobacco tax and hunting on public lands with traps and poison. There have been 65 propositions approved between 1994 and 2018.
Since the Voter Protection Act was approved in 1998, that law would also be back on the ballot in 2028 under HCR2046.
“HCR2046 would give each generation of voters an opportunity to decide whether laws enacted years or decades ago still make sense under contemporary circumstances,” Basile said.
The way the language is written, it doesn’t explicitly state what would happen if voters opt to vote “no” on an effort like that, but it is assumed the law would be wiped off the books, said Joel Edman, director of Arizona Advocacy Network. .
Bowers’ proposal also has the unintended consequence of asking voters to reauthorize laws that are already outdated, Edman said, citing the 2006 proposition setting Arizona’s minimum wage at $6.75 per hour, which would go to the voters again in 2036 as an example. If reauthorized, Arizona’s minimum wage would then seemingly be set at $6.75 again – even after voters approved to raise it to $12 in 2016, Edman said.
Roopali Desai, a Democratic elections lawyer, said Bowers’ attempt is “unnecessary” at a minimum.
“It is yet another ploy to undermine the constitutional right that voters have to legislate co-equally with the legislative branch,” Desai said. “We don’t renew or look at bills that the Legislature passes every 10 years and say it was not a good idea.”
Outside of it “targeting citizen initiatives” as Desai says, she also said there’s a worry of how much this could end up costing voters in the long run, which is unfair and punitive to voters.
“There are costs associated with publicity pamphlets, printing ballots, running campaigns. It seems unnecessary that we would put more cost to the voters for something that they’ve already passed.”
Desai said just to get even one initiative on the ballot would cost millions of dollars to obtain the necessary signatures and that is not counting the money spent on the campaigns.
Voters saw in 2016 an effort to legalize recreational marijuana through an initiative in which more than $6 million went into both the yes and no campaigns and that effort failed on the ballot. If HCR2046 is approved, every 10 years millions of dollars would potentially be spent on those campaigns just to have voters keep approving laws that exist already.
But it’s not just the cost, it’s also the length of the ballot, which Desai said could lead to “voter disengagement.”
The more questions on the ballot leads everyday voters to have to understand more topics they may not completely understand for various reasons, Desai said. For average Arizonans, they don’t live and breathe this, she said.
“I would argue that’s the point of the Bowers bill,” Desai said. “That’s just another tactic for voter suppression, which is that if you just throw so much money that they can’t digest it, or understand it or sort through it, then they’ll vote no, or they’ll not vote at all.”
Basile said Bowers’ proposal would actually entail more voter decision making.
Bowers did not return a call for comment.
The other effort out of the House is the only referendum targeting the initiative process to make it out of its chamber of origin. Rep. Anthony Kern, R-Glendale, introduced HCR2032, which when applied with Bowers’ reauthorization measure, could make things even more complicated.
Kern wants the voters to approve an effort that would require all ballot propositions be limited to a single subject, saying that is how the Legislature works.
Basile said the proposal just applies to initiatives the same single-subject rule that has always governed ordinary legislation and constitutional amendments.
“It would allow voters to evaluate discrete proposals on their own merits, rather than force them to accept or reject a hodgepodge of unrelated provisions on a take-it-or-leave-it basis,” Basile said.
If Kern’s and Bowers’ proposals were to pass, they could cause confusion over what happens to already approved laws with two subjects that need to be reauthorized. For example, Proposition 206, the 2016 minimum wage increase that also addressed sick leave, could not qualify for reauthorization if HCR2046 is also approved.
In HCR2046, when voters would have to reauthorize Proposition 206, it might be thrown off the ballot for not complying with HCR2032. In fact, one portion of the Arizona Constitution requires all acts to contain just one subject.
However, during the legal battle over Proposition 206, the Arizona Supreme Court declared that the rule only applied to acts of the Legislature, not initiatives.
Braun and Desai said it’s not so simple that these efforts could be applied together anyway.
Since neither has the other mentioned in its language – either directly or indirectly – Legislative Council Executive Director Mike Braun said there would have to be further legislative implementation for that to work.
So since Kern doesn’t have anything in the language of HCR2032 that would be retroactive or a direct correlation to “initiatives that need to be reauthorized” it could not apply to HCR2046, Braun said.
Likewise, Desai said if there is an attempt to remove a proposition from a renewal ballot because it violates the single-subject law there would likely be litigation.
Basile agreed that if both are implemented, it could lead to litigation.
“Some thorny drafting questions (and maybe litigation) might arise in particular instances, but I don’t think implementation would be all that difficult in most cases,” he said.
Republican Sen. Vince Leach’s SCR1020 would ask voters to amend the Voter Protection Act, so only a simple majority vote would be needed to amend some voter-approved laws rather than three-fourths in both chambers as now required, and those changes would no longer have to “further the intent” of the original voter-approved law.
Leach’s proposal passed through the Senate Judiciary Committee on February 13 without any testimony except from the sponsor himself, who referred to the 2010 Arizona Medical Marijuana Act and the 2016 minimum wage increase, both voter-approved measures, as prime examples fueling his effort. The measure subsequently passed through the Senate Committee of the Whole on February 24 on a voice vote, but has yet to receive a full vote from the Senate.
The change would only apply to initiatives and referendums relating to “health and public safety,” but Leach said that interpretation is broad.
Braun said the term is undefined, but has similarities to a section of the Arizona Constitution which allows lawmakers to put an emergency clause on legislation if it is necessary for the immediate “public peace, health, or safety” of the population. That is also undefined, but Braun said case law suggests it’s for the Legislature to decide when something is needed for those reasons and can effectively apply to nearly anything the Legislature wants, as long as there’s a two-thirds approval.
“But I don’t know what a court would say about this new provision,” he said.
The referral would allow voter-approved initiatives a one-year window of being untouchable. However, any initiative that has been on the books for more than a year is fair game – so long as lawmakers can successfully argue the voter-approved law relates to public health and safety.