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Judge rules against initiative backers who want online signature gathering

Symbol of law and justice in the empty courtroom, law and justice concept.

A federal judge late Friday tossed out a bid to allow initiative organizers to get the signatures they need through an online portal.

“It is undeniable that the COVID-19 pandemic is currently wreaking havoc on initiative committees’ ability to gather signatures,” wrote Judge Dominic Lanza. But Lanza, a President Trump nominee, rejected the argument by attorney Jim Barton that the outbreak effectively makes it impossible for the groups to gather the signatures they need by the July 2 deadline using the traditional face-to-face methods.

Lanza noted that some groups hoping to qualify for the Nov. 3 ballot actually already gathered enough names before the pandemic took hold.

Dominic Lanza

Dominic Lanza

And the judge also accepted arguments by attorneys for the state that it may be that any failure to qualify is at least partly the fault of organizers. He said that the two committees suing in his court didn’t start organizing and gathering signatures until the second half of last year while other groups began organizing right after the 2018 election.

“A reasonably diligent committee could have placed its initiative on the November 2020 ballot despite the (statutory) requirements and the COVID-19 outbreak,” the judge wrote. And he said that the claims by challengers “fail to provide any explanation (let alone justification) for why they waited so long to begin organizing and gathering signatures.”

Anyway, Lanza said, just because it may be hard to gather signatures now does not mean it will remain that way.

“It is possible that conditions will abate to the point that in-person signature gathering again becomes viable before the July 2020 submission deadline for signatures,” the judge wrote.

On the other side of the equation, Lanza accepted arguments by the state that the current process — in-person signatures, witnessed by circulators who then sign sworn affidavits — meets the needs to prevent fraud and promote political speech and civic engagement.

Finally, Lanza made it clear that he was not comfortable with being asked to effectively rewrite state election laws that have been in place since the early days of statehood.

Friday’s ruling is not the last word.

The challengers in this case can seek review from the 9th Circuit Court of Appeals.

And attorney Roopali Desai, representing the backers of four other initiatives, has a separate pleading before the state Supreme Court. The justices are not expected to rule before April 28.

Central to the fight is the requirement that those proposing changes to state law must get 237,645 valid signatures on petitions by the July 2 deadline to put their issues before voters.

All six of the initiative drives involved in the two lawsuits had been doing that the traditional way until the virus hit. That resulted not just in reticence of both circulators and voters to approach each other but also a directive by Gov. Doug Ducey for people to stay at home except for essential activities.

The lawsuits both asked for legal authority to use the state’s existing E-Qual system. Already available for political candidates, it allows people who have a valid Arizona driver’s license or identification to “sign” petitions with their name, date of birth and identification number.

Barton argued that given the unique situation surrounding COVID-19 the judge should allow petition circulators to use the same system, at least for this year.

Lanza said part of what was causing him heartburn with this request was that the change would require him to do more than direct state officials to ignore a statutory requirement. He said the rules for submitting petitions on paper and circulators attesting to their validity also exists in the Arizona Constitution.

The judge acknowledged arguments by Barton that the E-Qual system could be “substantially compliant” with the constitution.

But Lanza pointed out that question may have to be answered by the Arizona Supreme Court in the parallel case. And that, he said, amplifies his concern that this is an issue where federal courts should be loath to tread.

And there’s something else.

Lanza said the challengers were arguing that the laws on initiative circulators, as being interpreted by the state, were placing an undue burden on the public’s right to engage in political speech during the pandemic. But he said it’s not that simple.

“To the extent plaintiffs aren’t currently able to engage in face-to-face interaction with qualified electors, that’s the fault of the COVID-19 pandemic, not the (statutory) requirements,” the judge wrote.

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