9th Circuit suspends ruling to allow time to fix unsigned ballots

The James R. Browning United States Courthouse building, a courthouse for the U.S. Court of Appeals for the Ninth Circuit, is shown in San Francisco, Wednesday, Jan. 8, 2020. (AP Photo/Jeff Chiu)
The James R. Browning United States Courthouse building, a courthouse for the U.S. Court of Appeals for the Ninth Circuit, is shown in San Francisco, Wednesday, Jan. 8, 2020. (AP Photo/Jeff Chiu)

A federal appeals court has put a hold on a judge’s ruling that gave people extra time after Election Day to sign their ballots.

The order Tuesday does not technically overturn last month’s decision by U.S. District Judge Douglas Rayes, an appointee of President Obama, that those who forgot to sign the envelopes before dropping them in the mail should have an extra five days to “cure” the problem. That will have to wait for a full-blown hearing which has not yet been scheduled.

But the three-judge panel said that, by their reckoning, a bid by Attorney General Mark Brnovich to overturn the ruling is likely to be successful. They said the current deadline to fix this kind of mistake is “reasonable” and that the five-day grace period to supply missing signatures “would indeed increase the administrative burdens on the state to some extent.”

If nothing else, the appellate judges, made up of nominees of Presidents Reagan, Clinton and Obama, said they do not like the idea of forcing a change right now.

“As we rapidly approach the election, the public interest is well served by preserving Arizona’s existing election laws, rather than sending the state scrambling to implement and to administer a new procedure for curing unsigned ballots at the eleventh hour,” they wrote.

In granting the stay, the appellate court likely has effectively killed any chance that voters will have this year to cure their ballots after Election Day. That’s because it may not be possible for the judges to have a hearing, issue a ruling and then have whichever side loses take it to the U.S. Supreme Court before Election Day.

It does, however, preserve the ability of the challengers to make their case for upholding Rayes’ decision ahead of the next election.

Tuesday’s order is a setback for the Arizona Democratic Party, the Democratic National Committee and the Democratic Senatorial Campaign Committee who had asked Rayes to block election officials from rejecting unsigned ballots.

There’s a political component to the fight.

Alexis Danneman, who represents challengers, said it was “inevitable” that Democrats — or those who would vote for Democrats — would not have their votes counted unless they were given an opportunity to cure their unsigned ballot envelopes.

On the other side of the fight, the Republican National Committee, the Arizona Republican Party and the Donald J. Trump for President Committee intervened to preserve the law.

In providing the extra five days, Rayes pointed out that Arizona lawmakers have provided that same grace period to those who are notified by election officials that the signatures on the envelopes do not match what is on file at county offices. The judge said he saw no difference or additional burden created by extending the same consideration to those who forgot to sign the envelope at all.

The appellate judges, however, said that misses a key point.

In the case of a mismatched signature, they said that could be the result of a subjective decision by an election worker.

“It is rational, then, that the state might voluntarily assume some additional administrative costs to guard against the risk of losing such votes at potentially no fault of the voters,” they said.

By contrast, the judges said, the failure of a voter to sign the ballot envelope is totally that person’s fault.

“The state may still reasonably decline to assume such burdens simply to give voters who completely failed to sign their ballots additional time after Election Day to come back and fix the problem,” they wrote. And they said that requiring people to sign their ballot envelopes imposes only a “minimal” burden.

Brnovich had help in his bid to stay the law, beyond the Republican organizations. The attorneys general of 20 states — all Republicans like Brnovich — submitted their own legal brief asking the appellate judges to leave the Arizona law in place and accusing Rayes of “overreach.”

Ballot order law constitutional, federal judge rules


A federal judge has tossed a bid by Democrats to get their candidates a higher spot on the ballot in Republican-dominated counties.

U.S. District Court Judge Diane Humetewa, a President Obama appointee, ruled June 25 that the individuals who challenged the way state law determines ballot order have no legal standing to sue because they are not injured in any way. She said they still have the right to vote for any candidate.

Similarly, she said claims by the Democratic National Committee and the Democratic Senatorial Campaign Committee were flawed because they failed to show that the current system frustrates their bid to get Democrats elected to statewide office. And Exhibit No. 1, Humetewa said, was the 2018 election of Kyrsten Sinema to the U.S. Senate.

Finally, Humetewa said even if they did have a right to sue, it is not within the legal authority of courts in cases like this to come up with a “fairer” alternative.

The decision is a setback for the challengers who said the current system is not just unfair but also illegal.

Diane Humetewa
Diane Humetewa

Under that system, candidates on the general election ballot are listed in each county in order based on how well the governor did in that county in the last general election.

What that means in 2020 is that Republicans will be listed ahead of Democrats in 11 of the state’s 15 counties — including Maricopa which has more voters than the other 14 combined. And the reason that’s important, challengers argued, is there is research which shows there is a tendency of voters, all else being equal, to choose the first candidate on a list.

Humetewa said all that is irrelevant, saying she has no legal basis to consider the claim.

She said anyone seeking federal court intervention must demonstrate “a personal stake in the outcome.” And that, the judge said, means showing that they would be injured “in a personal and individual way.”

That isn’t the case here.

“The harm that plaintiffs allege is not harm to themselves, but rather an alleged harm to the Democratic candidates whom they intend, at this juncture, to support,” Humetewa wrote. And she said that a candidate’s failure to get elected does not injure those who voted for that person.

Nor, the judge said, can they show other harms by the law.

“They do not argue that the ballot order statute prevents them from casting a ballot for their intended candidate, nor do they argue that their lawfully cast votes will not be counted,” she said. And she brushed aside any arguments about the fact that some people were having their votes for the candidates diluted because others were simply picking the first name they saw.

“Plaintiffs will not be injured simply because other voters may act ‘irrationally’ in the ballot box by exercising their right to choose the first-listed candidate,” Humetewa said.

She also took a slap of sorts at the Democrats for their proposed solution: rotating the position of Democrats and Republicans on the general election ballot.

“Their definition of ‘fairness’ does not require rotation of independent party candidates, write-in candidates from the primary election, or other third-party candidates in their ballot scheme, meaning that those candidates would never be listed first on the ballot,” the judge said.

There was no immediate response from attorneys for the challengers.

Candidate Mark Syms not to be on ballot, judge rules

Dr. Mark Syms, an independent candidate for the Arizona senate, sits in Judge Christopher Coury's court room accused of submitting numerous forged signatures on his nominating petitions for the ballot. (Photo by Arizona Republic/Pool Photo)
Dr. Mark Syms, an independent candidate for the Arizona senate, sits in Judge Christopher Coury’s court room accused of submitting numerous forged signatures on his nominating petitions for the ballot. (Photo by Cheryl Evans/Arizona Republic Pool Photo)

A Maricopa Court judge ruled Friday that Mark Syms, the independent candidate running for the Senate in Legislative District 28, does not have enough valid signatures to remain on the ballot.

In a seven-page minute entry, Superior Court Judge Christopher Coury ruled that Syms, husband of Rep. Maria Syms, R-Paradise Valley, is 757 signatures short of the 1,250 signatures he needs to qualify for the November general election.

In a complaint filed June 13, attorneys representing plaintiff Robert McGee, the husband of Syms’ political rival, Sen. Kate Brophy McGee, R-Phoenix, challenged 1,930 signatures, 914 of which the attorneys alleged were forged. They had similar handwriting, consecutively numbered addresses and the high rate of collection, attorneys alleged.

In court on Friday, attorney Kory Langhofer, who represents McGee, said that one of the circulators who gathered signatures for Syms gathered more than 300 signatures in one day, a rate that far exceeds the number of signatures gathered by other circulators. He alleged that there were dozens of duplicate signatures on the man’s sheets, some allegedly signed by the same person on consecutive days, and he said the signatures varied from sheet to sheet.

“This is fraud. This is fake,” he said.

Langhofer said the questionable signatures collected by the petition gatherer, coupled with testimony from Anthony Garcia, a known petition gatherer who testified that he never circulated petition sheets for Syms and that his signature was forged on the petitions Syms turned in, and the number of signatures the Maricopa County Recorder’s Office invalidated because the signatures on the petitions didn’t match those on voter registration records was enough evidence to kick Syms off the ballot.

Maricopa County Recorder Adrian Fontes, who testified on behalf of the plaintiff, told the court that of the 1,930 signatures his office reviewed, 1,675 were found to be invalid for various reasons. Of those, 1,176 signatures were invalidated by the Recorder’s Office because the signatures on the petition sheets did not match those on voter registration records.

However, Syms’ attorney Jeremy Phillips questioned the veracity of the recorder’s report, saying that employees in the office don’t have the ability to verify whether a signature belongs to someone. Phillips also questioned why Fontes’ office only did one check of Syms’ signatures, while they conducted second and third checks in other campaigns that have been challenged.

Phillips said the plaintiff’s argument relied heavily on the county’s report, which isn’t reliable.

“They’re trying to ride the County Recorder’s report to glory,” he said.

Fontes testified that employees in his office receive frequent training on how to examine signatures, similar to training that the FBI and other law enforcement agencies receive. He said they look at impressions, slants, swoops and other handwriting styles to determine if a signature is forged.

“This isn’t rocket science, counselor. I’m sure you could even do it,” Fontes said.

He said that there is nothing unusual about how his office conducted its review of Syms’ signatures. He said his office did not conduct a second check on Syms’ signatures because of the short time frame, large percentage of signatures that were challenged and because Syms was so far below the threshold of valid signatures he needed to qualify for the ballot.

In his testimony, Syms testified that he hired a man named Larry Herrera to collect signatures for him. Herrera, a Democrat who ran for the Senate in Legislative District 20, is also facing fraud allegations from the Arizona Citizens Clean Elections Commission in connection with his failed campaign.

Syms said he was not aware of the forgery allegations against Herrera at the time he hired him, and only became aware of them after he turned in his own signatures. He said he has since asked for a refund but has not received a response from Herrera.

Garcia, the petition gatherer who testified his signature was forged on several of the sheets Syms turned in, told the court he met Herrera earlier this year at a gas station on 35th and Glendale avenues. He said he was wearing a shirt with the name of the firm he works for and Herrera approached him and asked if he would like to collect signatures for him.

He said he collected about 40 signatures for Herrera, including some for Sandra Dowling, a Republican candidate for the 8th Congressional District, but didn’t collect any for Syms. He said Herrera tried to recruit him to collect signatures for Syms, telling him that Syms was paying “a lot of money,” but Garcia wasn’t interested. Syms allegedly paid circulators $10 per signature, which would come out to $21,580 for all of the signatures he filed.

In his ruling, Coury wrote that the plaintiff did not present any evidence proving that Syms was actively involved in any fraud scheme or that he was aware of the bad signatures before he turned them in.

“To the contrary, the court would be inclined to find that defendant’s team of signature gatherers, and not defendant, were the ones engaged in the fraudulent practices,” the judge wrote.

Still, Coury wrote that while Syms’ attorneys rehabilitated 10 signatures, meaning they proved the signatures were valid, they did not provide any evidence that proved any of the other 1,665 signatures the county nullified were actually valid.

He also said the defense failed to prove that further review of Syms’ signatures by the county “would have made a material difference – one sufficient to validate anywhere close to 757 signatures.”

Court says ballot measure case not ‘ripe’ for litigation

scales justice court 620

A state law throwing new hurdles in the path of initiative circulators will remain, at least for now.

In a new ruling Tuesday, the state Court of Appeals did not dispute the contention of challengers that a 2017 statute requiring strict compliance with all election laws could keep some individuals and groups from writing their own laws and asking voters to approve them.

But Judge James Beene, writing for the three-judge panel, said they cannot rule on the issue because no one is actually being penalized — and no initiative is at risk of being thrown off the ballot — for failing to comply with the new standards. And that, in legal parlance, means the case is not yet “ripe” for a decision.

Attorney Roopali Desai said she has not had a chance to consult with her clients to decide whether to seek Supreme Court review. But she told Capitol Media Services that the ruling leaves a whole host of questions about exactly when those who believe their constitutional rights are being violated can seek judicial intervention.

At the heart the issue is the right of voters to create their own laws.

The Arizona Constitution spells out that any group which gets the signatures equal to 10 percent of the people who voted in the last gubernatorial election can put a statutory change on the ballot. This year that figure is 150,642.

Constitutional changes have a 15 percent requirement, or 225,963.

Many lawmakers have complained about the initiative process, saying it has led to special interest groups proposing measures that affect the state and its budget.

But proponents contend they go directly to voters when legislators won’t act. Recent examples range from banning gestation crates for pigs and outlawing leghold traps on state land to allowing patients to use marijuana for medical reasons and an increase in the state minimum wage.

It was that last measure, approved by voters in 2016 by a 3-2 margin over the objection of the business community that led some GOP lawmakers to seek curbs.

Powerless to increase the number of signatures required, they instead imposed some new requirements — including this new “strict compliance” standard.

Up until last year, court has interpreted the Arizona Constitution to say that initiative organizers need only be in “substantial compliance” with election laws. That means technical flaws, ranging from the wrong type size to voters signing with initials instead of their full names, did not automatically void petitions.

That change in law is significant.

If the strict compliance standard had been in effect in 2012, for example, voters would never have been able to decide whether to make permanent a one-cent increase in the state sales tax. That’s because there were wording differences between the electronic and printed versions of the initiative filed with the secretary of state.

But the courts said those were not meaningful, allowing a vote. The measure failed anyway.

In a hearing last year, a series of witnesses told Maricopa County Superior Court Judge Sherry Stephens that a strict compliance standard will make it easier for foes to disqualify signatures — and in some cases, entire initiative sheets — for technical violations. The result, they said, will be they need to get even more signatures as a cushion, raising the expense of putting measures on the ballot.

But Stephens said she can’t consider the issue as she had no actual case in front of her. It was that decision the appellate court upheld on Tuesday.

“No initiative proponent has taken any concrete, affirmative steps such as filing an application with the  Secretary of State or obtaining a serial number with that office for the purpose of circulating petitions to place an initiative measure on the 2018 ballot,” Beene wrote.

Nor were the appellate judges persuaded by the argument that the strict compliance standard will increase the cost of future initiative campaigns, pointing out that those who filed suit are not circulating petitions, much less have they incurred those costs. That, Beene said, makes such claims “speculative.”

Desai said the ruling provides no clear guidance on when a case becomes legally “ripe.”

She said that could be as early as when a group starts circulating an initiative petition and has to incur additional expenses. Conversely, they could have to wait to sue until after the signatures were gathered and turned in only to have the Secretary of State’s Office or a court void them for failing to comply with all the technical requirements.

Desai said that, at the very least, that question needs to be cleared up.


Ducey signs bill to make it more difficult for citizens to put measures on the ballot


Gov. Doug Ducey has given his approval to yet another measure that will throw roadblocks in the path of Arizonans who seek to craft their own laws and constitutional amendments.

And, just for good measure, the new law also includes a procedural hurdle for would-be elected officials interested in challenging incumbents.

Existing statutes already require certain people who circulate petitions to register with the Secretary of State. That includes anyone who is not an Arizona resident and all paid circulators, regardless of where they are from.

What’s changed is that these people now must provide a residence address, telephone number and email address along with an affidavit, sworn in front of a notary public, that the circulator meets other requirements and has not been convicted of certain offenses. And that person cannot begin to collect signatures until he or she gets a registration number which must be put on any petition.

But the real key is that failure to do any of this means that any petitions collected by a circulator are not counted, regardless of whether the signatures are valid or not. Sen. Martin Quezada, D-Glendale, said all this is designed to give foes of ballot measures technical grounds to knock a measure off the ballot rather than have to actually debate the merits.

“This is clearly and blatantly and expressly an effort to increase the ability of special interest groups to litigate these initiative measures on purely technical deficiencies,” he said during debate.

That point was brought home by the fact the legislation was backed by key business lobbying groups. Those are the same groups who have been pushing for changes in the law after they have been unable to stop voters from approving measures they do not like. Most recently that included boosting the state minimum wage from $8.05 an hour to $11 now, going to $12 next year.

Sen. Vince Leach, R-Tucson, who sponsored the legislation, said the new requirements are necessary to protect the integrity of the electoral process.

Foes noted, however, that lawmakers are unwilling to impose the same restrictions on those who circulate their nominating petitions.

Leach conceded the point. But he said the difference is that laws approved by voters become permanent, especially with constitutional bans on legislators making changes. By contrast, he said, voters can get rid of lawmakers every two years.

This isn’t the first change in procedures that Ducey has approved.

Two years ago he signed a measure banning the practice of paying circulators based on the number of signatures they collect.

He also signed a law last year crafted by Arizona Public Service, the state’s largest electric utility, which essentially would have allowed it to ignore any voter-approved mandate to generate a certain percentage of energy from renewable sources. As it turned out, that measure failed at the ballot.

The latest actions follow the decision several years ago by the Republican-controlled Legislature to enact a measure designed to overrule a state Supreme Court decision that initiative petitions need be only in “substantial compliance” with election laws, a standard that allows for technical flaws. Now the law spells out that courts can void petition drives and keep measures from going to voters if there is not “strict compliance” with all laws.

Before sending the bill to Ducey, lawmakers added another provision requiring candidates to file a “statement of interest” with the proper election office before collecting signatures, spelling out what office the person wants and what is the political party affiliation. That puts incumbents on notice when there is a challenge.

The new law also contains a hammer: Any signatures gathered before that public statement are invalid.


Ducey: Invest in Ed supporters in need of ‘civics 101 class’

Gov. Doug Ducey (Photo by Katie Campbell/Arizona Capitol Times)
Gov. Doug Ducey (Photo by Katie Campbell/Arizona Capitol Times)

Gov. Doug Ducey said Monday that Invest in Education Act supporters who blame him for the downfall of the ballot initiative need schooling on how government works.

Ducey’s comments come after Red for Ed and Invest in Ed supporters blamed the governor for an Arizona Supreme Court ruling on Aug. 29 that will keep the initiative, which would have raised taxes on the state’s top earner to fund education, off the November ballot.

“I would point them to a civics 101 class,” Ducey said. “The Supreme Court is a separate and coequal branch.”

Arizona teachers make up a large portion of Invest in Ed supporters.

Proponents of Invest in Ed accused Ducey of “stacking” the Supreme Court in order to further his agenda and kill the citizens initiative. In 2016, Ducey appointed two new justices to the state Supreme Court after the Legislature passed legislation expanding the court from five to seven members at the governor’s behest. He also made an appointment in 2015.

Invest in Ed supporters say Ducey’s appointed justices played a major role in killing the ballot initiative. It is too early to know, though.

The Supreme Court ruling was a split decision, but the five-paragraph preliminary ruling does not indicate where each justice stood in the debate. A more extensive written ruling will be issued in the future that will disclose the split and further explain the ruling.

A majority of the justices ruled that the initiative description of Invest in Ed’s proposed tax hike on the wealthiest Arizonans and the omission of any language describing how the law would affect income tax brackets for Arizonans at every income level was inadequate.

The two factors created “a significant danger of confusion or unfairness,” Chief Justice Scott Bales wrote in the decision barring the initiative from a vote on the November ballot.

Ducey said Monday after a campaign event he respects the high court’s decision that the initiative could have been misleading to voters.

Ducey has repeatedly refused to comment on ballot initiatives before they make it on the ballot, but he indicated that his thoughts on Invest in Ed were already clear.

“Everyone knew I was not in favor of the tax increase,” he said. Ducey said he looks forward to reading the full opinion when it is released.

After the Supreme Court decision, Red for Ed supporters quickly lashed out against the court, the governor and the Arizona Chamber of Commerce and Industry — a major opponent of the initiative — for Invest in Ed’s demise. Red for Ed supporters, who spent months collecting approximately 270,000 signatures to put the initiative on ballot, have held protests at the Supreme Court and the Chamber to vent their anger at the high court’s ruling.

David Garcia
David Garcia

Red for Ed supporters are now working to channel their energy into getting pro-public education candidates up and down the ballot elected to office this November. One candidate they are backing is Democratic gubernatorial candidate David Garcia, who also bashed Ducey for the Supreme Court decision.

After the ruling, Garcia labeled the Supreme Court as Ducey’s “cronies” in a fundraising email.

“The stakes in the race for Governor of Arizona have just changed — utterly and irrevocably. Doug Ducey’s hand-picked Supreme Court just removed the Invest in Education initiative from the ballot,” Garcia said in the email.

The Invest in Ed ballot measure sought to raise taxes on income above $250,000, a move they estimated would boost funding for K-12 public schools by $690 million.

Clarification: This story has been updated to clarify that Gov. Doug Ducey said supporters of the Invest in Education Act who blame him for the initiative’s downfall are in need of a civics lesson, not teachers who blame him for the downfall.  

Early voting change short on votes

Voting ballot box isometric vector icon with paper sheet

While the Arizona Senate took another step towards banning voters from dropping off their mail-in ballots at polls, the measure is effectively dead due to opposition from two Republicans.

Sens. Heather Carter and Kate Brophy McGee are opposed to SB1046, which require voters who request a ballot by mail to return it by mail. If not, they’d be required to go to a polling place and vote in person, rather than have the option to drop off the mail-in ballot at election sites across the state.

Some 228,000 mail-ballots were dropped off at polling sites on the day of the 2018 general election, and both Carter and Brophy McGee said they object to barring that long standing practice in Arizona elections. Carter, a Cave Creek Republican, acknowledged that she’s one of those voters who delivers her mail in ballot by hand.

“The analogy someone used with me is toothpaste back in the tube,” Brophy McGee, R-Phoenix, told the Arizona Capitol Times. “People are used to doing it that way, they want to do it that way. I’d love to find a way to be mree efficient, but this isn’t the way to get there.”

Brophy McGee also cited testimony from county recorders, the officials responsible for running elections, that contradicted the core rationale offered by Sen. Ugenti-Rita to sponsor SB1046 – that requiring ballots to be mailed back would expedite the process of counting ballots.

“My understanding is that it will not save time,” Brophy McGee said.

Combined with the unanimous opposition from the Senate’s 13 Democrats, that leaves Ugenti-Rita, R-Scottsdale, one vote shy of the 16-vote majority needed for a bill to be approved in the Senate.

Nonetheless, the bill was the subject of fierce debate in the Senate on Wednesday before senators took a voice vote to advance the bill one step further in the legislative process.

Ugenti-Rita and Republicans characterized voting as a “privilege” or “responsibility” and decried the practice of dropping off ballots and the slow vote counting process as a drag on the public’s faith in Arizona elections. And Ugenti-Rita brushed aside the concern of county recorders, who testified before the Senate Judiciary Committee that eliminating the ballot drop off won’t help them count votes any faster. Worse, some warned it could depress voter turnout.

Republicans bristled at this particular accusation as Democratic senators, one after another, spoke in fear of the bill unintentionally suppressing votes or disenfranchising voters who choose to drop off their mail-in ballots.

“This will be a step backwards in terms of voter accessibility,” said Sen. Rebecca Rios, D-Phoenix.

Republicans countered that there are still plenty of options afforded to voters if they can’t return their ballots by mail. At one point, Republican Sen. Eddie Farnsworth scolded Democratic Sen. Juan Mendez for suggesting that a bill such as Ugenti-Rita’s could be racist.

Mendez, a Tempe Democrat, had said that the “human impact” of some bills could be detrimental, and that he wished bills could be studied “to find out how racist some of these bills are.”

Sen. David Farnsworth, R-Mesa, called the practice of dropping of ballots “ridiculous.”

“Voting needs to be respected,” he said. “When I was young I didn’t hear so much about the right to vote, I heard about the responsibility to vote.”

Education ballot measure no place for obscurity, euphemism

(Photo by Ryan Cook/RJ Cook Photography)
(Photo by Ryan Cook/RJ Cook Photography)

In what some education supporters see as a cruel blow, the Superior Court recently denied placement of the Invest in Ed measure on the November 2020 ballot. Calling the summary of the initiative “legally insufficient,” the pointed opinion stated that the description “does not accurately describe the Initiative’s principal provisions without the substantial risk of confusion for a reasonable Arizona voter.” The initiative’s supporters are appealing the decision to the state Supreme Court.

The business community is justified in their concern over the lack of disclosure provided to voters on Invest in Ed. Blithely posed as a “surcharge” on individual income taxes, the direct impacts to business are significant and widespread. Among Arizona’s more than 570,000 small businesses, estimates suggest that 40% to 50% of those impacted by the tax increase will be business owners who legally file their taxes as individuals rather than as corporations. The marginal rate change (from 4.5% to 8.0%) represents about a 77% increase in their top tax rate. Without appropriate summary, voters are left on their own to interpolate the measure’s meaning, reach and consequence. They will find no illumination from the Invest in Ed website, which provides only relative and comparative tax data and fails to calculate or estimate actual impacts.

Arizona education leaders are well acquainted with legal obligations and expectations to communicate openly and transparently with the public. For instance, informational pamphlets for bond elections must include specifics on the tax impacts to business owners as well as individual homeowners. In other communications with the public, school officials are advised that when discussing or considering school matters, which can be complex, information provided must be “sufficiently descriptive to inform the average, off-the-street person.”

Eileen Klein
Eileen Klein

The ballot is no place for obscurity and euphemism. Nor is soft pedaling to voters even necessary. Arizonans have a solid record of funding education at the ballot box, even when they are told clearly and directly that they will be paying more in taxes and shown how.

In 2000, Arizona voters supported Proposition 301, which imposed a new sales tax predominantly benefitting K-12 education, providing monies to fund teacher pay, classroom size reductions and students support programs like tutoring and dropout prevention. In 2010, Arizona voters passed a temporary additional sales tax through Proposition 100 to provide nearly $1 billion in funding to protect education budgets during the Great Recession. Although it involved changing a constitutional formula rather than raising taxes, voters in 2016 approved Prop 123 to increase distributions from state land trust earnings to raise K-12 per-pupil spending and add an estimated $3.5 billion over ten years.

Notably, those ballot measures were led and funded by a broad coalition of Arizona business and education interests, working together with elected officials in the best interest of our public schools, teachers and students. As a result, they faced little opposition due to extensive efforts to bring together diverse stakeholders in a bipartisan fashion.

In contrast, Invest in Ed has been organized and underwritten by a narrow set of special interests located outside Arizona. Campaign finance reports show that as of June 30 over $4 million has been raised to pay for campaign workers’ salaries and benefits, as well as political activities like signature gathering and text message outreach. Nearly all of that funding – over 85% – has come from a single organization located in Portland, Oregon.

Arizona’s Voter Protection Act creates a compelling reason for activists to go to the ballot rather than the Legislature to lockbox their efforts. Passed by legislative initiative in 1998, Proposition 105 immunizes measures passed at the ballot from gubernatorial veto or legislative diversion. Those who seek to change Arizona’s Constitution, laws and appropriations through the voting booth should not be surprised to find their efforts facing extra scrutiny given the act’s protective shield.

For their part, Arizona education advocates are understandably worried that calling a halt on the Invest in Ed initiative will end the conversation on school funding. They shouldn’t be so pessimistic. For at least a decade, Arizonans have said more money should be spent on schools and the majority are willing to pay more in taxes. They also want their hard-earned money spent efficiently.

Despite the legal battle underway, Arizona business leaders support spending for teachers and schools. Arizona business leaders supported the “20 by 2020” plan introduced by Governor Ducey and passed by the Legislature to raise teacher salaries 20% by 2020. It cannot be overlooked that Arizona business supported teachers and school personnel continuing to get paid even while schools were closed due to COVID, while their own employees have gone without work and without pay. Ignoring these efforts, out-of-state forces instead imported Invest in Ed to Arizona in 2018 and again in 2020, refusing to set aside their agenda even amid the hardships caused by a global pandemic.

Should the Supreme Court uphold the lower court’s decision, rest assured there will be Arizona business leaders who step forward, willing to create a more robust and comprehensive school funding plan without the threat of economic harm.

It’s time for a more modern, more sensible approach to school finance – one that is Arizona led, and Arizona backed – and that will generate revenue from more reliable resources to support schools and teachers. Beyond shoring up per-pupil spending levels, the plan must make funding allocations among schools more equitable and result in greater academic achievement for all students. Spending equity and tax equity go hand in hand in Arizona school finance, so the plan likewise should update our tax code and spur additional business investment that grows Arizona’s economy and personal income for its residents, not stifle their prosperity.

Working together, Arizona business and education leaders have the opportunity to make our state the best place to educate a student, whether they attend a public K-12 school, community college or university. The millions being spent on court battles on both sides could be put to better use by funding an inclusive stakeholder process to keep Arizona voters from going through this conflict again in future election cycles.

Meanwhile, no one should argue that Arizona voters deserve straight talk when it comes to their ballots and their pocketbooks. Back in Oregon, the commanders of Invest in Ed might heed the wisdom of Chief Joseph of the Nez Perce, a revered leader and forefather of the lands that belong to their state, “It does not require many words to speak the truth.”

Eileen Klein is the owner of a small businesses in Arizona. Her public service includes serving as the 35th state treasurer of Arizona and chief of staff to Governor Janice K. Brewer. Eileen is past president of the Arizona Board of Regents and a former member of the State Board of Education.

Election challenges a question of law, issue of values


In the last week, four of five Arizona Corporation Commission candidates whose nomination petitions were challenged lost their cases. I was the plaintiff in three cases – one of which prevailed in the Arizona Supreme Court.

Those who lost will place the blame on partisan conspiracies, out-of-state operatives, overreaching jurisprudence or any other sound bite that suits them. The truth? They should blame themselves.

As was stated by plaintiff attorneys, the foundational requirement for candidates is the requirement that requisite valid signatures be submitted to qualify for the ballot. The losing candidates failed the test.

Forged signatures, disregard for the law, lax campaign oversight, sloppiness.

Eric Gorsegner
Eric Gorsegner

The attorneys for the plaintiffs meticulously applied the law and exposed the deficiencies.

The courts rendered fair and impartial justice.

To be sure, there are plenty of problems with elections in Arizona:

  • “Separate but Unequal” – one system for candidates (Substantial Compliance threshold) and one system for initiatives (Strict Compliance threshold). Call it unfair, rigged, political, antidemocratic even shameful, but, it is an easy fix for policymakers whose motives are pure rather than partisan.
  • Dark Money – Disclosure is the least onerous requirement possible and one embraced by the late conservative Justice Antonin Scalia. Yet, in Arizona we continue to tolerate this affront to the integrity of elections and democracy. It is an outrageous indefensible atrocity and crass abuse of power.
  • EQual – Expansion and refinement of this system would constitute a giant leap forward in improving, syncing, and modernizing the moving parts of our election system. Opposition to constructive reform is based on fake arguments, manufactured fear, and imagined technical hurdles that do not exist. In short, one reliable secure database with verification, cross referencing, and sorting protocols beats the archaic analog system of “scroll and papyrus.”

Over a century ago, the Arizona Constitution and Arizona Corporation Commission were conceived by reform- minded citizens who feared the corrupting influence of unchecked monopolies. Arizona has experienced a decade of dysfunction on the commission and these candidates would have perpetuated that culture. There can be no denying that the status quo is in decay. The commission must serve the public interest, not self-interest and special interests.

I believe that the forces of entrepreneurship, innovation and capitalism will eventually overwhelm the current paradigm of political manipulation and obsolete regulatory structures. Although we are moving in that direction, until that transition comes, a properly regulated free market with public minded policymakers is the best we can do. The values of those who occupy these positions matters greatly.

It is vital that the commissioners we elect in 2020 be genuinely grounded in core values of fairness, due process and ethics.

It is also vital that the commissioners we elect demonstrate a deep and firm commitment to:

  1. The New Energy Economy – Embracing the jobs and economic development that come from technological innovation, new market structures and new ideas.
  2. Renewable Energy, Efficiency & Storage Technology – Aggressively capitalizing on our solar resources, grid investments and transportation infrastructure.
  3. Environmental Stewardship – Understanding the interlocking complexities of energy, water, land, natural resource conservation and economic development

Those are my litmus tests for any candidate – Republican, Democrat or independent.

This year, every voter should look behind the trite repetitive slogans and be skeptical of outside dark money that will flood this election to “manage your thinking.” Cast aside the “isms” and shallow unreflective arguments of anyone who says this is easy because it is not. The Corporation Commission is a place for serious, smart, thoughtful policymakers, not political climbers. Voters have a civic duty to pay attention.

— Eric Gorsegner is former associate director at the Sonoran Institute, deputy director of the Citizens Clean Elections Commission, deputy chief of staff to the mayor of Phoenix and senior government relations representative with the Salt River Project.

Election officials to refer fraudulent petitions to AG for criminal probe

Staff at the Secretary of State’s Office combs through the final petition sheets filed by the #InvestInEd campaign, looking for
missing signatures, voter information and other irregularities, on

State Elections Director Eric Spencer said the Secretary of State’s Office is preparing to ask the attorney general to investigate fraud allegations that have plagued the 2018 election cycle.

There have been accusations of fraudulent signatures on the nominating petitions of at least four candidates this year.

Spencer said his staff conducted a cursory review of the signatures gathered by all 310 candidates for state, legislative and federal office this year. He said the staff is mainly focused on the nominating petitions submitted by gubernatorial candidate Ken Bennett, Sandra Dowling, who is running for the 8th Congressional District, Rep. Ray Martinez, D-Phoenix, who was running for the vacant Senate seat in Legislative District 30, and Mark Syms, an independent candidate running for the Senate in Legislative District 28.

Their nominating petitions were challenged in court for alleged signature fraud and forgery and each had hired a former Democratic candidate, Larry Herrera, to collect signatures for them.

Spencer said one thing they did find is that when they mapped out the addresses of the purported circulators who collected signatures for the candidates, they all lived fairly close to Herrera.

Herrera, a Democrat who ran for the Senate in Legislative District 20 earlier this year, is also facing fraud allegations from the Arizona Citizens Clean Elections Commission in connection with his campaign.

Spencer said once the Secretary of State’s Office finishes processing and reviewing signatures filed by campaigns pushing four ballot initiatives, he will also check with staff to see if any of the circulators who collected signatures for candidate campaigns also collected signatures for any of the initiatives.

“I don’t know whether there is any overlap at this point, but we want to marry the results of what we learned from the initiative process with the candidate process and put together a comprehensive referral,” he said.

So far, Spencer said, the office has gathered enough evidence that it feels comfortable proceeding with a criminal referral.

The ultimate decision on whether or not to proceed will be left up to Secretary of State Michele Reagan, who he said has not yet been briefed.

However, Spencer said this is an issue that Reagan and staff have made a priority.

“I think the secretary and I agree that it’s probably time to send a message out there that this isn’t going to be tolerated any longer,” he said.

Spencer had previously told the Arizona Capitol Times that the Secretary of State’s Office would allow the Maricopa County Recorder’s Office to determine whether to refer the four cases to law enforcement or an outside agency that can analyze the allegedly forged signatures. If the county refused to pursue the matter, Spencer said, the Secretary of State’s Office would.

Sophia Solis, a spokeswoman for the Recorder’s Office, declined to comment on any ongoing or possible investigations. The Maricopa County Attorney’s Office said it would review any case referred to the office by the county recorder. However, a follow-up email asking whether any cases had already been referred went unanswered.

Spencer said he is not sure where the county stands on the issue. He said both agencies have been busy analyzing the nearly 1.5 million signatures filed by the four initiatives and just because the county has not yet referred the case for a criminal investigation does not mean it won’t.

But he said the Secretary of State’s Office wasn’t willing to wait on the matter.

“I just decided that there was enough evidence in our possession where we could independently refer this evidence to the attorney general without needing to wait for the county,” he said.

Elections officials mull criminal probes of forgeries


Elections officials said they will likely refer several campaigns that have been implicated for fraud and forgery to law enforcement for further investigation.

At least four candidates whose nominating petitions were challenged in Maricopa County Superior Court have faced allegations of widespread signature fraud.

Eric Spencer
Eric Spencer

State Elections Director Eric Spencer said the Secretary of State’s Office will allow the Maricopa County Recorder’s Office to determine whether to refer the four cases to law enforcement or an outside agency that can analyze the allegedly forged signatures.

County Recorder Adrian Fontes said he has not yet decided if the cases will be referred for prosecution. He said he met with the county attorney on June 27 to determine what the office will do.

Gubernatorial candidate Ken Bennett; Sandra Dowling, who is running for the 8th Congressional District; Rep. Ray Martinez, D-Phoenix, who was running for the vacant Senate seat in Legislative District 30; and Mark Syms, an independent candidate running for the Senate in Legislative District 28, have all been accused of filing fraudulent signatures.

The County Recorder’s Office invalidated thousands of the signatures the candidates turned in, including 1,460 collected by Syms, Dowling and Martinez that didn’t match those on voter registration records.

The candidates hired a man named Larry Herrera to collect signatures for them. Herrera, a Democrat who ran for the Senate in Legislative District 20 earlier this year, is also facing fraud allegations from the Arizona Citizens Clean Elections Commission in connection with his campaign.

If the county refuses to pursue the matter, Spencer said, the Secretary of State’s Office will.

“I think we would give Maricopa County breathing space for a couple of weeks to determine if they want to do something. If they pass, I’m fairly certain Secretary (Michele) Reagan would want to take the next step and work on referring it to the attorney general,” he said.

Spencer said staff has been asked to do a cursory review of all candidate petitions to see if some of the same circulators who were implicated in these cases collected signatures for other campaigns.

However, he said a review of the nominating petitions will depend on what kind of resources the office is able to dedicate to this, since the office is also working on other election-related matters.

Still, that won’t deter the office from pursuing further action, he said.

“The bottom line is we’re not going to let this fade away or let it go. It’s probably too late to do anything for the 2018 cycle in terms of a deterrent effect, but in terms of the 2020 cycle, we need the circulator community to know there will be consequences for fraudulent activity,” he said.

Agency spokesman Matt Roberts said it’s premature to say if the Secretary of State’s Office will push for legislative changes to petition gathering laws next year. He said no one from the Legislature has approached the office about changes to the law.

“There has been what seems to be an uptick in issues in petition circulation and we will certainly take a look at the election cycle as a whole and determine what types of legislation might be necessary moving into the next election cycle and more importantly the next legislative cycle,” he said.

Spencer said in addition to a possible criminal investigation, another way to prevent such signature fraud from happening in future elections is to encourage candidates to vet signatures before submitting them to the Secretary of State’s Office.

He said much of the blame has been placed on the signature-gathering firms and the circulators themselves, but candidates hold some responsibility to double check their work.

“They don’t bear a criminal responsibility, but they do hold some responsibility, on a sliding scale, to ensure everything looks right,” Spencer said.

Spencer said first-time candidates or candidates using a new or unknown firm have an obligation to check their nominating petitions before turning them in. That obligation is less for experienced candidates who are working with a firm that has a proven track record, he said.

In Syms’ case, Spencer said there were numerous red flags, including widely reported fraud allegations against Herrera, the large number of signatures collected in such a short time frame, and the “astronomical” number of signatures collected in a single day by some of the circulators.

Taking all that into account, he said there was a high burden on Syms’ campaign to review the petitions.

“It is not enough to call yourself a victim of fraud,” he said. “Candidates aren’t victims here.”

Spencer pointed out that there are several candidates who withdrew from their respective races prior to a challenge being filed or once a challenge was filed because they reviewed their petitions and found that they didn’t have enough valid signatures to remain on the ballot.

Radio host Seth Leibsohn dropped out of the Republican primary for the 9th Congressional District after submitting his signatures to the Secretary of State’s Office but before a legal challenge was filed. Leibsohn ended his campaign after he reviewed his petition sheets and found that he didn’t have enough valid signatures to qualify.

Rep. Mark Cardenas, D-Phoenix, who was running for state treasurer, didn’t file nominating petitions because the people he hired to collect signatures provided fraudulent signatures the day before the filing deadline.

“That was a responsible and ethical thing for them to do. Those are two good examples of candidates taking responsibility for what goes on in their campaigns,” Spencer said.

Federal lawsuit challenges law to regulate signature gatherers


A new lawsuit seeks to strike down a statute that can invalidate otherwise legitimate and qualified signatures on an initiative petition.

Attorney Sarah Gonski said the requirement unconstitutionally “discourages the people of Arizona … from exercising their fundamental right to make law without consulting the Legislature.” She is asking U.S. District Court Judge Susan Bolton to block Secretary of State Katie Hobbs from enforcing the requirement.

Gonski may have an uphill battle.

The statute in question was upheld just this past year by the Arizona Supreme Court. But Gonski is trying a different path of attack, alleging that it runs afoul of protections in the U.S. Constitution.

Katie Hobbs
Katie Hobbs

Arizonans can propose their own constitutional amendments and laws by gathering enough signatures to put the issue directly to voters.

The 2014 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.

More significant, it allows those trying to keep a measure off the ballot to subpoena those circulators. And if any circulator who has to register does not show up, then all the signatures that person gathered can be struck, potentially leaving the petition drive short of its goal.

One of the plaintiffs is Next Gen Climate Action Committee which pushed an unsuccessful measure last year to impose new renewable energy mandates on utilities. Gonski, arguing on behalf of the organization, said the statute has taken its toll, citing the experience of Jessica Miracle, a paid petition circulator on that measure.

Subpoenaed by foes of the measure, the lawsuit says Miracle could not attend because her children were sick, she did not have her own transportation to Phoenix, and no one would tell her clearly how many days she would need to be in Phoenix.

The result, according to Gonski, was that all of the 2,604 signatures Miracle gathered were invalidated.

Gonski said the law is not just unfair to circulators.

One of the plaintiffs in the lawsuit is Mary Katz, listed as a Phoenix resident and registered voter.

According to Gonski, Katz signed that renewable energy measure.

“But her signature was later invalidated when the circulator who witnessed it was unable to appear in court when subpoenaed,” the lawsuit states. And Gonski said Katz was not told until long after the election that her signature has been invalidated, meaning there was no way for her to go to court to tell the judge that it was, indeed, a valid signature.

The other key plaintiff in the case is Arizonans for Fair Lending which is currently circulating petitions to enact a law to outlaw title loans. Rod McLeod, who is managing that campaign, said the law has now become a tool for challengers to use to keep measures opposed by certain business interests from ever getting to voters.

He pointed out that challengers to the renewable energy measure issued subpoenas for about 1,180 circulators. McLeod said it was clear from the start there was no way they were going to question that many people in the one week the judge had set aside for trial.

In fact, Gonski said, out of the 913 circulators who appeared, 872 were sent home without ever being asked a single question about their work.

McLeod said challengers know that, using the massive subpoenas “just for intimidation” in hopes that some people would not show up, allowing all the signatures they gathered to be voided. And that could become an issue as his organization seeks to obtain the 237,645 valid signatures it needs by July 2, 2020, to put the title loan measure on the 2020 ballot.

The tactic of issuing subpoenas to disqualify signatures actually worked last year, though it didn’t involve nearly as many subpoenas.

At issue was an initiative to insert a “right-to-know” provision in the Arizona Constitution, requiring any group seeking to influence a political race or ballot measure to reveal the identity of anyone who contributed more than $10,000.

Sarah Gonski
Sarah Gonski

Challengers issued subpoenas for 15 circulators, leaving them with a security guard at an office building which had been used by a company that had hired the paid circulators. When none appeared, the judge disqualified the 8,824 signatures they had collected, leaving the petition drive short.

Attorney Kim Demarchi challenged the law in that case in a bid to put the “Outlaw Dark Money” measure on the ballot. She argued that a circulator’s signatures should be tossed only when there is a “valid objection” to the circulator or the “need for a circulator’s testimony.”

But Supreme Court Justice John Lopez, writing for the unanimous court, said the constitutional right of people to propose their own laws and constitutional amendments “is, and must be, subject to reasonable regulation.” And he said requiring circulators to appear in court and tossing their signatures if they don’t show “furthers the constitutional purpose of the initiative process by ensuring the integrity of signature gathering by reasonable means.”

Gonski, in her new lawsuit, argued to Bolton that the law is unfair and discriminatory. She pointed out that lawmakers decided the requirement to registering paid and out-of-state circulators and allowing their signatures to be struck if they don’t show up, applies only to ballot measures and not to nominating petitions for political candidates.

“There is no evidence to suggest that initiative petitions are more susceptible to fraud than candidate nomination petitions, nor that paid or out-of-state circulators are in need of special punishment above and beyond other circulators to compel their attendance in court,” she wrote.

A spokeswoman for Hobbs, who is the defendant in the case, said her office was reviewing the challenge.

The case presents an interesting situation for Hobbs: She actually voted for the measure when she was a state senator in 2014. In fact, all but two Senate Democrats supported it: Andrea Dalessandro of Green Valley and Robert Meza of Phoenix.

Correction: A previous version of this story erroneously reported that Arizonans for Fair Lending needed to enough signatures by July 2 to make the 2018 ballot. The group actually has until July 2, 2020, to make the 2020 ballot.

Justices explain why Invest in Ed measure booted from ballot

The Arizona Supreme Court from left are Robert Brutinel, John Lopez, John Pelander, Scott Bales, Andrew Gould, Clint Bolick, Ann Scott Timmer.
The Arizona Supreme Court from left are Robert Brutinel, John Lopez, John Pelander, Scott Bales, Andrew Gould, Clint Bolick, Ann Scott Timmer.

Citing confusing language that could trip up voters, five of Arizona’s Supreme Court justices explained their decision to bar a citizen initiative to raise taxes for education in a ruling released Friday morning.

Vice Chief Justice Robert M. Brutinel, joined by justices John Pelander, Clint Bolick, Andrew Gould and John R. Lopez favored throwing the Invest In Ed initiative off the ballot, a decision that drew the ire of teachers and public school advocates throughout the state. Their explanation was penned anonymously — the ruling was issued “per curiam,” meaning no one author takes credit for the written opinion.

Those justices determined that the “description of the initiative’s principal provisions omitted material provisions and created a significant danger of confusion or unfairness to those who signed petitions to place the measure on the ballot.”

The key omissions included a failure to address the initiative’s impact on income tax indexing, a change that would affect all Arizona taxpayers, and a strict reading of the initiative’s effect on income tax rates for wealthy Arizonans.

Invest In Ed backers hoped to raise taxes on Arizona individuals earning more than $250,000 annually and households earning more than $500,000.

The opinion was exactly as Gov. Doug Ducey’s campaign staffers had predicted it would be, having told reporters back in August the decision was a 5-2 split with the same two justices dissenting. When two reporters revealed the information on a local TV news program, the governor and his campaign dismissed the information as a rumor that was presented to the reporters as such.

A representative from the Invest in Ed committee said the Supreme Court overstepped by striking the initiative from the ballot and release of the full opinion raised concerns about Arizona’s political system being “rigged” against voters.

Invest in Ed co-chairman Josh Buckley said his greatest concern with the ruling is that it gives the Republican-controlled Legislative Council major leeway in describing and interpreting ballot initiatives, regardless of its drafters’ intent.

In the opinion, a majority of the justices suggested that had the Invest in Ed language been submitted to the nonpartisan Legislative Council staff for review prior to volunteers circulating petitions, the staffers may have altered the language to a point that the initiative could have gone on the ballot.

But Buckley also said the appearance that Ducey’s campaign knew about the ruling before the general public is troubling.

“Leaks concerning the outcome of the Supreme Court vote, the identity of the dissenters and the timing of the opinion all raise concern about improper communications between the Court and outside interest groups,” he said in a statement.

Some have blamed the decision on Ducey and legislative Republicans boosting the size of the court from five justices to seven, allowing the governor to appoint to new justices, Gould and Gomez. But that maneuver had no effect on the outcome, which would have been a 3-2 decision without expansion.

“We greatly respect the initiative process, including the civic activism required to collect the signatures necessary to qualify a ballot measure, and we do not lightly disturb the fruits of such efforts,” the five justices wrote. “However, we must do so, as the Court has done in various prior circumstances, when essential requirements necessary to qualify a measure are not adequately followed.”

Chief Justice Scott Bales and Justice Ann Scott Timmer dissented, and each wrote opinions explaining their rationale.

The justices also avoided issuing a ruling on the constitutionality of strict compliance, and did not address a Maricopa County Superior Court ruling that the law is unconstitutional.

In responding to the opinion released Friday, Ducey spokesman Daniel Scarpinato doubled down on the campaign’s stance that they had no inside information on the ruling, and instead that they heard a rumor about the vote split.

Scarpinato referred the Arizona Capitol Times back to a statement issued more than a month ago in response to an Arizona Republic column questioning why Ducey’s campaign purported to know the vote split. The statement said Ducey did not know the vote, and that his campaign simply shared a rumor with reporters on background.

Carmen Forman contributed to this report. 

Kanye West won’t appear on Arizona ballot

FILE - This Nov. 17, 2019, file photo shows Kanye West on stage during a service at Lakewood Church in Houston. A law firm with ties to prominent Democrats has filed a lawsuit attempting to keep West off presidential ballots in Virginia. Attorneys for Perkins Coie filed a lawsuit in Richmond on Tuesday, Sept. 1, 2020, on behalf of two people who say they were tricked into signing an “Elector Oath” backing West's candidacy. (AP Photo/Michael Wyke, File)
This Nov. 17, 2019, file photo shows Kanye West on stage during a service at Lakewood Church in Houston. A law firm with ties to prominent Democrats has filed a lawsuit attempting to keep West off presidential ballots in Virginia. Attorneys for Perkins Coie filed a lawsuit in Richmond on Tuesday, Sept. 1, 2020, on behalf of two people who say they were tricked into signing an “Elector Oath” backing West’s candidacy. (AP Photo/Michael Wyke, File)

Arizonans who like Kanye West won’t be able to vote for him for president.

In a brief order this afternoon the Arizona Supreme Court upheld a trial judge’s decision that the electors West had chosen to represent him on the ballot had failed to comply with a state law requiring them to first file a “statement of interest” with the secretary of state.

What that meant, according to Justice Ann Scott Timmer, writing for the court, is that nominating petitions submitted before the statements had been filed were invalid. And that left West short of the number of signatures he needed to qualify as an independent candidate for the Nov. 3 General Election.

The justices sidestepped the question of whether West’s registration as a Republican in Wyoming precludes him from running as an independent in Arizona.

In doing so, the justices rejected arguments by West’s attorneys that it was improper of them to ignore the will of nearly 58,000 Arizonans who signed petitions to have his name on the ballot. They also said it is illegal for the state to impose its own requirements on who can run for political office.

Today’s decision only affects Arizona.

Earlier in the day election officials in Mississippi concluded he could have his name on the ballot there. He also has qualified in several other states.

Democrat interests have fought his candidacy, pointing out West’s friendship with President Trump and suggesting he wanted to get on the ballot solely to siphon votes away from Democrat Joe Biden.

Senate eyes change to petition processes

Manuel Galdamez, a member of Rural Arizonans for Accountability, walks through a neighborhood in northern Pima County to gather signatures for a petition to recall Rep. Mark Finchem, R-Oro Valley, on March 19. (PHOTO BY NATHAN BROWN/ARIZONA CAPITOL TIMES)

State senators took the first steps Monday that would erect new hurdles in the path of Arizonans to propose their own laws and constitutional amendments. 

On a 4-3 party-line vote, Republicans on the Government Committee approved a measure that says that petitions circulators have to actually read out loud the 200-word description on every ballot measure to anyone who wants to sign. 

In the alternative, SB1094 would require that signers being “sufficient time to read the description” before being able to put pen to paper. But nowhere in the proposal is that defined. 

More to the point, if the language is not read out loud or it is determined that there was not enough time, a judge is required to declare that signature invalid. 

Separately, the same panel approved SCR1025 which changes the requirements to qualify for the ballot. 

The Arizona Constitution now says that anyone seeking to propose a new law must get the signatures equal to at least 10% of those who voted in the last gubernatorial race. That is currently 237,645. 

This proposal by Sen. Vince Leach, R-Tucson, would set that percentage requirement in each of the state’s 30 legislative districts. 

Ditto the 15% requirement for constitutional amendments. 

Leach said the current system results in circulators concentrating on getting all the signatures they need in Maricopa County. 

“You will see all kinds of people gathering signatures at Fry’s in the metropolitan Phoenix and the Valley area,” he said. “But I never see one at my Fry’s in Oro Valley.” 

And that, he said, is not surprising, comparing it to what Willie Sutton reportedly told a reporter when asked why he robs banks. 

“Because that’s where the money is,” Leach said. 

This measure, he said, will ensure that rural interests get a voice on what goes on the ballot. 

On the flip side, however, is that SCR 1024 effectively could give residents of one legislative district — which could be as small as some neighborhoods — veto power over everyone else getting a chance to vote on certain measures. 

Leach, for his part, questioned the likelihood of that ever happening. 

Sen. J.D. Mesnard, R-Chandler, who is the author of SB1094, said his goal is not to make it harder to put issues on the ballot. Instead, Mesnard said he is trying to end “spin-filled signature gathering” where circulators seeking to attract signers may be providing people with inaccurate information about exactly what the initiative proposes. 

Nothing in his bill would block circulators from saying whatever they want. But what it would do, Mesnard said, is ensure that people have the opportunity to hear the official summary and decide for themselves if this is something they care to support. 

Enforcement, however, is another matter. 

He said that could take the form of someone filing a complaint with a court saying that certain circulators were not complying with the law and that any signatures they gathered should not be counted. But Mesnard said he does not see judges in this state making such wholesale decisions. 

For example, he said, a would-be signer could tell a circulator he or she already is familiar with the measure, whether having actually read it or through news coverage. Mesnard said the key is that the circulator has made the offer to read it aloud or give the person the time to peruse the summary. 

“If the petition gatherer has done that, then I think they have complied with the law,” he said. 

“It’ll be exceedingly difficult for someone to say, ‘Well, I watched them and the person just glanced at it and then they signed it, no way they could read it that fast,’ ” Mesnard said. “I don’t think a judge is going to go for that.” 

Both measures now need approval of the full Senate and, eventually, the House. 

But Leach faces an extra hurdle. 

The signature requirements for initiatives are part of the Arizona Constitution. And the kind of changes he wants would need voter approval at the next election before taking effect. 


On Twitter: @azcapmedia 

Supreme Court bars tax on rich ballot measure from vote

Gavel and scales

The Arizona Supreme Court won’t allow a vote on a citizen initiative to raise taxes for public education.

In an order signed by Chief Justice Scott Bales Aug. 29, a majority of the justices ruled that the #InvestInEd initiative’s description of the campaign’s proposed tax hike on the wealthiest Arizonans, and the omission of any language describing how the law would affect the income tax brackets for Arizonans at every income level, was inadequate.

The two factors created “a significant danger of confusion or unfairness,” Bales wrote in the decision barring the initiative from a vote on the November ballot.

Supporters of the #InvestInEd movement sought to raise taxes on income above $250,000, a move they estimated would boost funding for K-12 public schools by $690 million.

The effort was crippled by what the opposition described as drafting errors.

Kory Langhofer, an attorney for the Arizona Chamber of Commerce and Industry, argued that a 100-word description of the initiative inaccurately described the percent increase in tax brackets for wealthy Arizonans. And the initiative would undo a 2014 law that indexes all income tax brackets for inflation, which state budget analysts estimated would affect all Arizonans with higher taxes, Langhofer argued.

Though the #InvestInEd campaign vehemently denied the initiative would affect indexing, lawyers for the Legislature, and now a majority the Supreme Court, disagreed.

Joshua Buckley, a Mesa high school teacher and co-chair of the #InvestInEd campaign, said the court’s ruling infringed on Arizonans right to pass laws via the ballot, and vowed that the campaign would divert its efforts into electing legislators and politicians to statewide office that would support new funding for public schools.

“Today’s State Supreme Court decision is an utter outrage. Our highest court has joined the entrenched politicians at the Capitol in blatantly protecting the elite and the wealthy over the rights of voters and the needs of Arizona’s children,” Buckley said in a statement. “They’ve ignored the basic right, enshrined in the Arizona Constitution, of Arizona voters to enact laws on their own behalf.”

Supporters of the #RedForEd movement, which protested during the legislative session for higher teacher pay and more funding in general for public schools, planned a rally on the steps of the Arizona Supreme Court building on Thursday afternoon to object to the justice’s decision.

Leaders with Arizonans for Great Schools and a Stronger Economy, an organization formed to counter the #RedForEd narrative and oppose the tax hike, thanked the justices for their ruling.

“This was the right decision. As we argued, the initiative and its petition were fatally flawed. Proposition 207 does not meet the requirements to be on the ballot,” Jaime Molera, the group’s chairman, said in a statement. “Not only was the initiative poorly crafted, it was the wrong plan.”

Some blamed the ruling on Gov. Doug Ducey, who signed legislation in 2016 granting him the power to stack Arizona’s high court with two new justices. Previously there were only five, now there are seven, which supporters of the law — chief among them the Arizona Chamber of Commerce and Industry — claimed would lessen the Court’s workload.

“We saw the first fruits of Doug Ducey’s court packing scheme of adding radically partisan, anti-education political operatives to the Arizona Supreme Court,” said Josselyn Berry, executive director at ProgressNow Arizona.

The justices were split in their decision to bar the initiative from the ballot, though it’s still unknown which justices took which side in the debate. A written ruling further explaining the justice’s decision, and presumably the dissent, will be released at a later date.

Voting illustration causes confusion in CD8 special election


A generic illustration demonstrating how to fill out election ballots will be redesigned after it caused confusion among some voters in Arizona’s 8th Congressional District.

Ballots for the Feb. 27 special primary election in CD8 were sent to voters along with the illustration printed on a separate pamphlet. It instructs voters on ballot basics, like using a black pen and how to cast a valid vote for a write-in candidate.

ballot_01At the top, the illustration instructs voters to “vote for not more than 2” candidates in the hypothetical election.

But as the Secretary of State’s Office now notes online, voting for multiple candidates in the CD8 special primary would be an overvote and will not be counted.

Maricopa County Recorder Adrian Fontes said the pamphlet has been mailed with early ballots in every election for more than a decade. He said it was included with 1.6 million ballots in the fall of 2016 and more than 1 million in 2017.

He said the generic instructions always include the line indicating a vote should be cast for no more than two candidates. In doing so, the illustration also serves to show voters that they must fill in an arrow beside the name of a write-in candidate for that vote to be considered.

In the illustration, an error next to Rose Mofford’s name is filled in to indicate one vote, and an additional arrow is filled in next to hypothetical write-in candidate Wyatt Earp to indicate a second valid vote.

Fontes said concerns over the illustration have not be raised until now.

“It looks to me like a coordinated campaign to bring attention to a specific issue that one particular candidate might have a beef with,” he said.

Though he declined to name the candidate, he said the issue was raised by the campaign of a Republican candidate in the CD8 race “who I think is fishing for reasons to sue our office later.”

He added the candidate is “making mountains out of molehills” in an attempt to confuse voters.

“I think people are alarmed at the fact that we’re making sure that everybody gets a chance to vote and that we’re opening up accessibility,” he said. “And I think that people are looking for reasons to cause problems.”

Still, he said the matter is being taken seriously, and his office is now reviewing the illustration to determine what improvements can be made. Fontes said he hopes to roll out a redesign by the fall general election.

“At the end of the day, it doesn’t matter how the concerns got to us,” he said.

What’s on the ballot? Your guide to Tuesday’s US elections

Karina Smith holds her son Kyler Smith, 2, as she fills out her ballot at a polling place Tuesday, Nov. 7, 2017, in Alexandria, Va. Republican candidate for Virginia governor Ed Gillespie faces Democrat Lt. Gov. Ralph Northam in Tuesday's election. (AP Photo/Alex Brandon)
Karina Smith holds her son Kyler Smith, 2, as she fills out her ballot at a polling place Tuesday, Nov. 7, 2017, in Alexandria, Va. Republican candidate for Virginia governor Ed Gillespie faces Democrat Lt. Gov. Ralph Northam in Tuesday’s election. (AP Photo/Alex Brandon)

Voters are electing two governors, some big-city mayors and one member of Congress in an election dominated by local and state races.

A rundown of the top races on Tuesday’s ballot:

Two governors

Voters in two states are choosing replacements for their term-limited governors ai??i?? Democrat Terry McAuliffe in Virginia and Republican Chris Christie in New Jersey ai??i?? in contests seen as an early referendum on the presidency of Donald Trump. In swing state Virginia, Republican Ed Gillespie is running against Democratic Lt. Gov. Ralph Northam. In New Jersey, Democrat Phil Murphy is up against Lt. Gov. Kim Guadagno.

The stakes are high as both parties seek momentum ahead of next year’s midterm elections. Democrats haven’t won any special elections for Congress this year and the next Virginia governor will have a major say in the state’s next round of redistricting, when Congressional lines are drawn. Republicans are looking for a boost as their party is beset by intraparty turmoil between Trump and key Republicans in Congress.

Big-city mayors

New York City Mayor Bill de Blasio, a Democrat, made political missteps in his first term but is expected to easily defeat a younger Republican challenger from Staten Island, Nicole Malliotakis, and the private detective and TV commentator Bo Dietl.

In Boston, Mayor Marty Walsh asks voters to give him a second four-year term. Challenger Tito Jackson, a member of the City Council, would be the city’s first black mayor.

Detroit Mayor Mike Duggan is seeking a second four-year term against state Sen. Coleman Young II, whose father was the city’s first black mayor. Duggan was first elected after a state-appointed manager filed for Detroit’s historic bankruptcy.

Nearly a dozen candidates are competing to succeed term-limited Atlanta Mayor Kasim Reed. If the top vote-getter doesn’t win more than 50 percent, the race would require a runoff on Dec. 5.

Two women ai??i?? 54-year-old urban planner Cary Moon and 59-year-old former U.S. Attorney Jenny Durkan ai??i?? are vying to lead Seattle, a city dealing with the benefits and problems of an economy booming for some more than others. Former Mayor Ed Murray dropped his re-election efforts ai??i?? and then resigned ai??i?? amid accusations of sexual abuse by multiple men.

Charlotte, North Carolina, will be getting its sixth mayor since 2009. Mayor Pro Tem Vi Lyles, a Democrat, and Republican City Councilman Kenny Smith are running to replace Mayor Jennifer Roberts, who lost in the Democratic primary.


Maine residents vote in the nation’s first statewide referendum on whether to expand Medicaid under the Affordable Care Act, a vote viewed as a referendum on “Obamacare.” Thirty-one other states have joined the expansion, but this is the first time it has been put before voters. Maine’s Republican governor has vetoed five attempts to expand the program.

Utah’s congressional seat

Utah voters are choosing a replacement for U.S. Rep. Jason Chaffetz after the Republican’s surprise resignation earlier this year. Republicans outnumber Democrats 5-to-1 in the congressional district. John Curtis, the Republican mayor of the Mormon stronghold of Provo, is challenged by Democrat Kathryn Allen and third-party candidate Jim Bennett.

Philadelphia District Attorney

Voters in Philadelphia are picking a new district attorney to replace Seth Williams, a Democrat who was sentenced to prison last month for accepting a bribe. Larry Krasner, a liberal Democrat who vows to end mass incarceration and the death penalty, is favored to win in the heavily Democratic city. His opponent, Republican Beth Grossman, has gotten a boost with the local police union’s endorsement.

Control ofAi?? Washington

Voters in the Seattle suburbs will determine whether the Washington state Senate will remain the only Republican-led legislative chamber on the West Coast. 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