A federal judge on Tuesday questioned an attorney for the state how he can argue that allowing initiatives to use an online system to gather signatures could lead to fraud when state lawmakers allow themselves and others candidates to use the same process.
Judge Dominic Lanza, a President Trump nominee, said he could understand claims by Assistant Attorney General Drew Ensign that it would be improper for him to create such a system from scratch.
“But E-Qual exists,” the judge said.
“The Legislature created it,” Lanza continued. “It’s hard for me in some way to accept the idea that E-Qual is this unmitigated disaster of fraud when it’s something that the state of Arizona has chosen to adopt for use in certain types of electoral circumstances.”
The issue is critical because attorney Jim Barton, representing two groups that are hoping to qualify for the November ballot, is arguing to Lanza that the COVID-19 outbreak and the various edicts for social distancing and to stay at home has placed an unreasonable — and he says unconstitutional — burden on efforts to gather the needed signatures. So Barton wants the judge to order that, at least for this year, they can finish their petition gathering online using the existing E-Qual system.
“We don’t view it as an unmitigated disaster,” Ensign told the judge.
But he said that, in essence, the decision by lawmakers to let candidates get signatures online does not mean they are convinced that it’s as fraud-proof as it needs to be. Ensign said lawmakers rolled out the E-Qual system “on a trial, basically rolling it out sequentially to find out if it might work.”
Political candidates could start using the system eight years ago to get up to half their signatures; that 50 percent cap was removed for the 2016 election.
Anyway, Ensign argued, there’s nothing wrong with lawmakers coming up with one system of gathering signatures for themselves and another one to put issues on the ballot.
“It’s a very common feature of Arizona law that we have greater fraud prevention requirements for petition initiatives than we do have for nominating petitions,” he said.
Hanging in the balance is the future of several ballot proposals where groups started gathering signatures in person before the COVID-19 outbreak. That, he told the judge, changed everything, with the virus making traditional person-to-person signature gathering virtually impossible.
And Barton stressed that he is not asking Lanza to make E-Qual available forever.
“We’re just saying that during the period when it is literally dangerous to do in-person signature gathering to allow (use of) this electronic system,” he said.
Ensign argued that there are other ways for those proposing initiatives to still get the signatures they need by July 2, including single-use signature sheets, scheduling petition signings in advance or social distancing.
“I understand the argument,” Lanza told him. “But are you seriously arguing that the current conditions of the pandemic are not interfering with signature gathering under the traditional tools?”
And Lanza specifically pointed out that Tuesday’s hearing was telephonic, with the judge and each of the attorneys remaining in their own offices and calling in to make their arguments, an arrangement the judge said was made because of the pandemic.
Ensign, however, did not back off.
For example, he said, the groups involved could use this time when they can’t approach people with petitions to instead communicate with voters, create interest in the issues and even generate commitments to sign the petitions in person “when this pandemic has passed.”
And Ensign has another argument.
“Plaintiffs have no one to blame but themselves for not starting earlier,” he said. “Had they done so, other campaigns strongly suggests they could have qualified for the ballot.”
That reference is to Smart and Safe Arizona which proposes to legalize adult use of marijuana. Backers actually started gathering signatures last September and apparently already have enough names on paper petitions to put the issue on the ballot.
Lanza, however, said there’s another side to all that.
“I think the counter argument would be is that the reality of how these things work is that the high season for initiatives is invariably the early and middle part of the year of the actual election because that’s when civic engagement is at its highest,” the judge said. “That’s when people are actually fired up about these things.”
“That might be the case as a general characterization,” Ensign responded. “We simply don’t know,” saying there’s nothing in the record to prove that.
He said it would be wrong to reach such a conclusion with “little more than intuition here.”
There are some deeper legal issues that could end up affecting Lanza’s decision.
One is that Barton is asking the judge to allow this one-time exception from Arizona laws about getting in-person signatures.
But Lanza pointed out there also are similar requirements in the Arizona Constitution, noting that Barton is not asking him to override that document. Barton, for his part, told the judge he still can allow the use of the E-Qual system because it “substantially complies” with what the constitution requires.
The other is Ensign’s claim that this isn’t a situation where state law has created the burden on initiative circulators.
“This has been a burden of extraordinary proportion that has been created by external forces in which the state of Arizona had no role in creating,” Ensign said.
The judge said he hopes to have a ruling by the end of the week.
One complicating factor is that four other groups have taken their own similar claims directly to the Arizona Supreme Court. But the justices are not due to make a decision before the end of the month.
Ensign told Lanza he should step aside and wait to see what they rule. Barton disagreed.
“A few weeks really matters in this case,” Barton said. “A delay of a few weeks is enough to be fatal to the plaintiffs in this case who want to be able to put this question to the voters.”