Senate considers measure to ask voters to approve constitutional change tied to emergencies

The state Senate was likely just a few minutes away from approving a measure last week that would ask Arizona voters to OK a constitutional amendment requiring the Legislature to reauthorize any state of emergency called by the governor every 30 days.

Then one lawmaker raised questions that sidelined the proposal, possibly for good.

The plan to refer the measure to voters in 2024 already had been approved by the House and had gone through the Senate’s Rules Committee Wednesday. And then it was discussed at the Republican caucus meeting where the majority lawmakers talk about items about to have votes by the full Senate.

But then Sen. Ken Bennett, R-Prescott, sent for his laptop computer so he could look closely at the bill and asked that it be brought back a second time.

He quickly starting questioning its workability.

And the more Bennett learned from staff called back to the meeting to explain the proposal, the more he was concerned. And a handful of other majority GOP lawmakers who hadn’t thought hard about the bill joined him.

If sent to the ballot and approved by voters, HCR 2039 would have far-reaching impacts on how the state oversees disaster declarations and impact tens of millions of dollars in federal funding.

Many of those declarations can last for years, not because a fire is still burning or floodwaters are still inundating homes, but because the declaration must remain open in order to fund the repairs and rebuilding.

As of Jan. 17, Arizona had 41 open state disaster declarations, each relying on an emergency being declared by the governor, according to the state Department of Emergency and Military Affairs.

It can — and often does — take years, sometimes even decades, for a disaster to be closed. An open declaration is needed to qualify for federal emergency funding.

What is fueling this debate is Republican lawmakers’ anger over school and business closures ordered by former Gov. Doug Ducey in early 2020 when the Covid pandemic hit the state.

Last year, the GOP-controlled Legislature responded by sharply limiting a governor’s ability to call public health emergencies. Ducey, also a Republican, signed it — but only after it was crafted to take effect when he left office in early January and Democratic Gov. Katie Hobbs became the new governor.

Now, any health emergency is now limited to 120 days. After that, the Legislature would need to approve an extension every 30 days.

What’s behind HCR 2039 is the desire of most Republican lawmakers to not just greatly expand that law to cover not just health but all emergency declarations — most often used after fires or floods — and enshrine it in the Arizona Constitution.

But after an hour of what one GOP senator called “robust” discussion prompted by Bennett’s questions, the bill was put on hold — indefinitely — by Senate President Warren Petersen, R-Gilbert, so a “working group” could figure out whether it can be changed enough to be feasible, Bennett told Capitol Media Services.

“I was really kind of seeing it for the first time,” he said.

“But when I got my laptop brought to me after we had gone on to several other bills and I looked at it, I became immediately concerned that it was not workable,” Bennett said.

The measure already has been approved by the GOP-controlled House with only Republican votes. As a constitutional amendment, it needs no signature from Democratic Hobbs to be placed on the ballot.

And with strong support from Republicans like Petersen and Senate Government Committee chair Jake Hoffman, R-Queen Creek, it was primed for a vote in the GOP-controlled Senate after last Wednesday’s caucus meeting.

Then Bennett piped up.

“I think it would have passed if I hadn’t brought up the concerns,” he said.

Bennett said he knows Republicans are sore about the closures brought on by the pandemic, but that’s a rare instance.

“It’s obviously trying to deal with the Covid situation,” he said. “And, you know, if every emergency was a massive statewide emergency and governors were shutting down businesses and schools and on and on and on, then those types of emergencies might need an outside look from the legislature periodically.”

But there are dozens of state emergencies every year or two, and most are small, localized things like a wildfire or monsoon flooding. Just in the past two years, there have been 21 state and eight federal emergency declarations.

“They certainly don’t need the Legislature coming into a special session every 30 days to decide whether to extend them for another 30 days,” Bennett said.

The measure is sponsored by Rep. Joseph Chaplik, R-Scottsdale, who along with other GOP proponents argues that the Legislature has a duty to review emergency declarations. Hoffman championed it in the Senate Government Committee, where he said he wanted lawmakers to seize their constitutional oversight power.

“It is our job as Legislature to have a say and have a voice on behalf of our constituency when it comes to these things, regardless of who that governor is,” Hoffman said at a hearing last month.

“That’s why I like this measure.”

Senate Democrats on the panel bought up that problem of having to renew dozens of open disaster declarations each month.

They noted that having to do so would put the part-time Legislature in a state of permanent special session. And this past week, House Democrats put out a news release warning “against the reckless use of ballot referrals by Legislative Republicans to appease a small fringe of the alt-right.”

“The reality is that once a state of emergency is called it slips quickly from the media and the minds of the public,” the release said. “However, the lasting effects are ongoing and deeply personal for millions of Arizonans.”

It went on to list the more than three dozen open disaster declarations, the oldest dating to 1991. That last declaration covers statewide search and rescue efforts not linked to any event.

Sen. J.D. Mesnard, R-Chandler, said he supports the concept of putting limits on statewide emergencies in the constitution. But he said once he learned in the caucus meeting of the number of emergency declarations and their impact, he had second thoughts.

“I think all that was news to people,” Mesnard said. “So I just think there’s going to have to be a conversation that kind of works through all of that.”

“I think the premise behind the bill, especially as it relates to Covid-type situation, I strongly support,” he said. “We just want to make sure we’re not sweeping in things that make it either a challenge to sell to the voters or just a logistical challenge to fulfill as legislators.”

Bennett said there was talk of limiting the proposal only to statewide emergency declarations or making other changes. What is clear, though, is that the sweeping proposal is going to need major revisions that limit its scope if it is to make it out of the Senate and onto the 2024 ballot.

Hoffman, a key backer, was unavailable for an interview Friday to discuss how he might change the measure to get the needed Senate GOP votes. But in a text message in response to questions from Capitol Media Services, he appeared focused on preventing more lockdowns and business closures, not the much more routine fire and flood emergency declarations now covered by the bill.

“There is no disagreement amongst Senate Republicans that the voters should be given the opportunity to rein in the executive branch’s dangerously broad emergency powers,” he wrote.

“And as with all bills, Republican lawmakers are judiciously working through the process to find the strongest possible solution that will garner the necessary votes to prevent future lockdowns and mandates like America experienced during Covid.”