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Groups give up on challenge to election law

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Groups seeking to put initiatives on the ballot have thrown in the towel in their bid to void a law that can disqualify many otherwise valid signatures.

In a new filing in federal court here, attorney Sarah Gonski dismissed the request she had for Judge Susan Bolton to void the state’s “strikeout law.”

That means the 2014 statute will remain on the books and enforceable at least through this year’s election. It also means that those seeking to quash the initiative drives she represented will be able to use it to try to keep them off the November ballot.

Gonski, speaking for the team of attorneys who represented challengers, told Capitol Media Services she still believes the law is illegal and ultimately would have been struck down.

But she conceded that her efforts to get even a preliminary injunction were rebuffed, first by Bolton and then by the 9th Circuit Court of Appeals. And while that still left open the legal door to proceed to a trial on the merits of the law — eventually — Gonski said that did not make sense.

“One of the unfortunate realities of litigation is that sometimes you have to litigate for years to get what is ultimately the right conclusion,” she said.

“At this point, with this much time and money sunk into this effort, it just didn’t make sense to proceed,” Gonski said. “But that matter remains an open question and we hope that at some point in the future this law will no longer threaten the free-speech rights of Arizonans.”

The end of the case also has political implications.

Secretary of State Katie Hobbs, who as the state’s chief elections officers was named as the defendant, refused to defend the statute. That forced Attorney General Mark Brnovich to intervene. And Brnovich, a Republican, used the opportunity to slap down Democrat Hobbs in a press release, saying this is one of four instances where she did not try to uphold state laws.

All that could play out in 2022 when Hobbs and Brnovich could face off in the race for governor.

The underlying law is simple. It requires those who circulate initiative petitions for money or who are not Arizona residents to first register with the secretary of state’s office.

But the real teeth is that it also requires those people to show up in court if they are subpoenaed.

Foes of some initiatives have used that provision in the past to challenge initiative drives, knowing that if the people do not show — for whatever reason — that all the signatures they gathered are disqualified.

More to the point, that action is automatic, meaning it is legally irrelevant whether the signature itself was valid, whether the signer wants to vote on the measure, and even if the signer were to show up in court to verify the validity of the signature.

That, in turn, has led to the death of some petition drives, including one two years ago which would have put a provision into the Arizona Constitution to ban “dark money” anonymous contributions and require public disclosure of the true source of all funds for both candidate and ballot campaigns.

More immediately, it could affect this year’s elections.

Arizonans for Fair Lending, one of the groups that filed suit, is circulating petitions asking voters to cap interest rates on auto title loans at no more than 36 percent annual interest. Current law allows lenders to charge more than 200 percent.

Backers need 237,645 valid signatures by July 2 to qualify for the ballot.

Their signature-gathering process has been complicated by the COVID-19 pandemic as well as the stay-at-home directive by Gov. Doug Ducey and his orders closing various businesses where would-be signers might otherwise gather.

U.S. District Court Judge Dominic Lanza already has rejected a bid by some initiative drives to be able to gather signatures they need using an existing online system available to candidates. An appeal is pending at the 9th Circuit.

The Arizona Supreme Court has yet to rule on a parallel legal challenge.

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Secretary of State Katie Hobbs at a press conference on COVID-19 earlier this year with Gov. Doug Ducey. (Capitol Media Services photo by Howard Fischer)

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