A federal appeals court refused Friday to block an Arizona law that allows a judge to invalidate otherwise legitimate and qualified signatures on initiative petitions.
The three-judge panel of the 9th Circuit Court of Appeals did not dispute arguments that the law that requires petition circulators to show up in court when subpoenaed actually could leave petition drives short of the signatures they need. And they said it even could have the effect of convincing some people that they do not want to circulate petitions as their failure to show up could result in penalties.
But the judges said there’s no evidence presented so far that there would be irreparable injury if the law remains in place, at least while a trial judge considers the merits.
“The affidavits … support only speculative injury,” the judges wrote.
And they noted something else.
The law the challengers are seeking to void was enacted in 2014. Yet the lawsuit was not filed until last July — after the statute had been in effect for several elections.
“This delay implies a lack of urgency and irreparable harm,” they wrote.
Friday’s ruling does not mean the law is constitutional. That is a decision that U.S. District Court Judge Susan Bolton has yet to reach.
But it does mean the statute and the hurdles on initiative circulators will remain on the books for the time being — and will be in place as groups start submitting petitions to put issues on the 2020 ballot.
The decision comes on the heels of another setback for initiative circulators.
Last month a federal judge refused their request that they be allowed to get the remaining signatures they need online. The judge said the problems with face-to-face petition circulation due to the COVID-19 outbreak were insufficient for him to rule that they can use an alternate method not authorized by state law.
The law, which passed without significant debate, spells out that paid circulators and those who do not live in Arizona must first register with the Secretary of State or their signatures collected do not count.
But the significant provision deals with the ability of those trying to keep a measure off the ballot to subpoena circulators to appear in court to verify both their own eligibility as well as how they gathered the signatures.
Specifically, what’s been dubbed the Strikeout Law says that if any circulator who has to register does not show up, then all the signatures that person gathered can be struck — even if they were legally gathered and even if they were made by people who want the measure on the ballot — potentially leaving the petition drive short of its goal.
This is not an academic question.
Foes of the 2018 measure to prohibit anonymous donations to political campaigns successfully used the law to keep it off the ballot by issuing subpoenas for 15 circulators. When none appeared, the judge disqualified the 8,824 signatures they had collected, leaving the petition drive short.
Now attorney Sarah Gonski is arguing that the law “unconstitutionally discourages the people of Arizona … from exercising their fundamental right to make law without consulting the Legislature.”
For example, Gonski argued, the requirement could reduce the number of people available to circulate initiative petitions. She said that groups seeking to change the law would be reluctant to hire paid circulators from outside the Phoenix metro area for fear they would not show up in court, with the result of all their signatures being tossed.
The appellate judges were unimpressed.
“To the extent that plaintiffs contend speech will be chilled if the Strikeout Law is left in place, the majority of the circulators’ affidavits indicate at most they might be hesitant to work on petitions in the future,” they wrote.
“Likewise, the initiative proponents do not indicate that they are dissuaded from trying to place initiatives on the ballot, but instead that they will plan to dedicates resource to ensure circulators appear in court if subpoenaed,” the ruling said.
Overall, the judges said, the record shows that any injury to groups seeking to put measures on the ballot is “quite speculative.”
“It would occur only if there was a court challenge, and if a circulator were properly served but failed to appear, and if the loss of that circulator’s signatures caused the initiative to fail to qualify for the ballot.”
The judges did say that the public interest is served by free and unchilled speech.
“But the public also wants guarantees of a fair and fraud-free election,” they wrote. “And a state indisputably has a compelling interest in preserving the integrity of its election process.”