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Brnovich wants court to punt to Ducey on question of signature gathering

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Attorney General Mark Brnovich says it’s up to Gov. Doug Ducey to make the first decision on whether to let initiative circulators gather signatures online despite a state law to the contrary.

In new filings Friday with the Arizona Supreme Court, Brnovich urged the justices to delay any action on a bid by several organizations to seek an exemption to laws that say petitions for changes in state law can only be signed in person.

Brnovich is not taking a position on the claim by attorney Roopali Desai that, given the COVID-19 outbreak and the governor’s stay-at-home order, the in-person requirement infringes on the constitutional right of people to propose their own laws. Instead, he told the justices, it’s not ripe for them do decide — at least not until the challengers seek relief from Ducey.

“The governor is uniquely situated with purposes and powers that allow him to ascertain the scope of the pandemic at this time and as projected over the near future, how it impacts different parts of the state, and the practicality of in-person signature collection,” Brnovich said.

There was no immediate response from the governor’s office.

What it all comes down to, according to Brnovich, is that the problems the groups are having gathering signatures is related not just to the pandemic but also the governor’s response in declaring a public health emergency. More to the point, the attorney general says that declaration gives Ducey sweeping powers.

“In this narrow situation, the governor is statutorily empowered ‘to exercise, within the area designated, all police power vested in the state by the constitution and laws of this state in order to effectuate the purposes of this (emergency management) chapter,’ ” the legal filing reads.

“Given this broad conferral of authority by the Legislature during a declared emergency, the requests by the plaintiff in this suit, which in part involve protection of public health,should be first directed to the governor,” Brnovich said. He said it is up to Ducey to determine the fact and then issue an order.

Only then, the attorney general said, can this order be “brought to the courts for the legal consequences to be judicially defined.”

It’s even more complex than that.

In his filing, Brnovich noted the governor’s March 23 order prohibiting the closure of “essential services.” That list, he noted, includes legal, accounting, insurance, personal hygiene and real estate services.

“Whether signature gathering (or any other activity) is permitted or prohibited, and in what counties, cities and other parts of the state it is practical to engage in in-person signature gathering given the present COVID-19 pandemic, are factual determinations that are vested by statute in the governor to protect the public health and safety during this declared emergency,” Brnovich wrote. If nothing else, he told the justices, any findings by the governor might assist them in resolving the claims by Desai on behalf of the initiative drives she represents.

Allowing online signatures for initiatives would not be a big stretch.

Arizona law already permits candidates for statewide and legislative office to use what’s known as the E-Qual system to collect their own signatures. What Desai wants is court permission to open that up for initiatives, at least for this year given the problems of in-person signature gathering due to the pandemic.

A separate lawsuit filed by attorney Jim Barton in federal court seeks a similar order.

In his own pleadings, Barton told Judge Dominic Lanza that there’s nothing unusual about the normal process of having petition circulators approach voters to ask them to sign petitions.

“This seemingly ordinary activity in ‘normal’ times could prove harmful during the COVID-19 pandemic, and would be in violation of recommendations from the government and medical experts to remain at home and avoid being in close proximity to others,” he said.

A hearing on that case is set for April 14.

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