Election officials have verified thousands of signatures to place an initiative on the ballot to make Tucson the state’s first “sanctuary city.”
The Pima County Recorder’s office Monday certified more than 12,400 signatures, about 3,100 more than the minimum requirement needed to qualify for the November election.
The Pima County Republican Party says it plans to challenge the validity of the submitted signatures. The party has yet to file a lawsuit.
The initiative aims to add protections for people living in the U.S. illegally, including preventing Tucson police from asking about immigration status and prohibiting certain cooperation between city and federal agencies.
The Arizona Education Association (AEA) can breathe a sigh of relief — not because state courts just threw the union’s “Invest in Ed” near-$1 billion tax hike plan off the ballot for the second time in a row, but because the court’s scathing rebuke dealt only with this one instance of the union’s misinformation playbook.
Just two years after the Arizona Supreme Court threw out the first iteration of Invest in Ed – for failing to disclose to voters that its provisions would have increased taxes on virtually all state taxpayers — the AEA resurrected the initiative this year and managed to gather roughly 400,000 signatures to place it on November’s ballot. But as the court made embarrassingly clear to the union in its recent ruling, those signatures once again sprang up amid flagrant violations of state law and the union’s failure to properly disclose to voters what they had actually snuck into the initiative.
As the court explained, “Instead of identifying all principal provisions in the Initiative’s description, Defendant Invest in Education circulated an opaque ‘Trojan horse’ of a 100-word description, concealing principal provisions of the Initiative” from voters.
Unfortunately for the union, this Trojan horse ran afoul of existing legal standards which require the 100-word voter summaries but frown on those that “creat[e] a significant danger of confusion or unfairness for a reasonable Arizona voter.”
Yet that’s exactly what the union’s official summary did when it left out five separate significant components of what the ballot initiative would have actually done, like 1) hiking rates not just on individuals (as suggested in the summary) but also on small businesses, and 2) implementing not just what was euphemized to voters as a minor “surcharge,” but rather a permanent and near doubling of the state’s top tax rate.
It’s important to keep in mind exactly what Invest in Ed’s plan would have cost Arizonans. All told, it would increase the costs of, and spending on, the state’s K-12 system to the tune of nearly $1 billion. Lest you forget, that’s on top of the annual $650 million that Arizona lawmakers recently authorized for 20% teacher pay raises, plus an additional $370 million a year in K-12 funding restorations.
But far more embarrassing for the union than the violations themselves was the fact that, as the court wrote, the Arizona Supreme Court had already explicitly told the union in 2018 how it could properly reintroduce and describe its measure the next time around, but that “Instead of using the phrasing that had been blessed by the Arizona Supreme Court, [Invest in Ed] chose to use different language.”
As the court continued in stark terms:
“The disappointing aspect of this case is that [Invest in Ed] ignored the lessons provided by the Arizona Supreme Court in…2018. When a teacher specifically instructs a student exactly how to complete a math problem, and when the student disregards the instruction and does the math problem incorrectly on a future test, should the student receive a passing grade? The simple answer is no….[Invest in Ed] can be described much like the student in this example.”
The immediate result of all this appears to be the demise, yet again, of the union’s Invest in Ed plan. But there is a larger lesson the unions ought — though I fear likely won’t — take from the court’s vigilance: that systematically misleading voters at every turn is unacceptable practice.
Consider, for example, if the union’s broader talking points were held up to the same light of truth and impartiality as those studied here: the incessant falsehoods and half-truths about K-12 funding in the U.S. Indeed, imagine if the union had to similarly square with voters about the enormous inflation-adjusted increases in American K-12 spending over the past 30 years, or the fact that U.S. K-12 spending already far outpaces that of most other developed countries, or the fact that school choice options have routinely rescued students whom the unions have failed.
This might all be a bit more than the unions will ever be legally forced to admit, and for that reason, they can surely breathe a sigh of relief. But at least in the case at hand, Arizona’s teachers union and its Invest in Ed plan have been held to the standard of truthfulness that voters deserve.
Arizonans can breathe a sigh of relief, as well, knowing that at least for now, Invest in Ed’s deceptive scheme will not be put before the voters, saving the state from the massive near-$1 billion tax hike the proposal would have delivered — and the devastating consequences for individuals, businesses, and the state’s economy. But be forewarned: should the court’s decision be overturned, Invest in Ed’s could gain new life at a significant cost to our state.
Matt Beienburg is director of education policy at the Goldwater Institute and is director of the institute’s Van Sittert Center for Constitutional Advocacy.
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.
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.
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.
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.
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.
A Fountain Hills lawmaker is seeking a new restriction that could make it more difficult for voters to propose complex changes in state law.
The proposal by Sen. John Kavanagh, R-Fountain Hills, would limit future ballot measures to “one subject,” with a requirement that be spelled out in the title. More to the point, it would allow a court to void any portion of a voter-approved measure not mentioned in the title.
Kavanagh said he is simply trying to extend to voter-crafted measures the same rules that apply to laws proposed by the Legislature.
But it comes after voters in 2006 approved Proposition 206 which hiked the state’s minimum wage from $8.05 an hour to $10, with automatic escalator clauses that will take the figure to $12 by 2020.
After its approval, business interests asked the Arizona Supreme Court to void the measure, pointing to another provision which requires most companies to provide workers with at least five days of sick and personal leave.
The justices swatted down that argument, saying that constitutional provisions that limit legislation to a single subject do not apply when the proposal comes from voters. That means initiative backers are free to propose new statutes with a full garden of ideas in a single measure, even if they are unrelated.
Kavanagh contends that practice amounts to “logrolling.” In essence, the idea is to keep voters from having to “hold their nose” and support something they do not like in exchange for getting something they want simply because it is being offered in a single take-it-or-leave-it measure.
“We need to separate different issues,” he said.
Tomas Robles, who chairs the group that got voters to adopt the minimum wage hike, has a different take on SCR 1001.
“Anytime the Legislature is trying to reduce the power of what our vote can accomplish, it’s a bad thing,” he said. And he called any effort to undermine the ability of citizens to propose their own law “dangerous.”
Robles also pointed out this isn’t an isolated effort by the Republican-controlled Legislature to curb initiatives.
Last year alone lawmakers erected several new hurdles in the path of initiative organizers. These include a prohibition on paying circulators based on the number of signatures they receive to allowing judges to disqualify petition drives if there has not been “strict compliance” with each technical requirement.
Kavanagh, for his part, said fears that the change will stymie the initiative process are unfounded. He said the Legislature, which operates under a similar constitutional constraint, still manages to craft measures that become law.
But Sierra Club lobbyist Sandy Bahr said that fails to acknowledge a key difference in the process.
Lawmakers can get paid staffers to draft measures to have them considered; citizens need to not only hire outside legal help but then spend time and money gathering the signatures to put them on the ballot. And having to break issues into multiple petition drives, she said, simply doubles the cost.
What that leaves as a reason, Bahr said, is that lawmakers want to make it more difficult for voters to propose and enact their own laws — especially ones that are not in sync with the thinking of the Republican majority.
“They don’t like when the people pass measures that really are contrary to what they would do,” she said. And Bahr called the motive behind Kavanagh’s measure “pretty transparent, especially in light of the minimum wage issue.”
Bahr said there’s one good thing about what Kavanagh has proposed.
As a constitutional amendment, it could not take effect unless and until it is approved at the ballot. And Bahr said that gives groups like hers a chance to explain to voters why they should reject what he is proposing.
Secretary of State Katie Hobbs is urging a federal judge to throw out a challenge to a law that could make it more difficult for groups to put initiatives on the ballot.
In new legal filings, attorneys for Hobbs are defending a 2014 law which says that if petition circulators do not show up in court then all the signatures they gathered will not be counted, regardless of whether it turns out they actually were valid. Hobbs said the law serves a legitimate state purpose and does not unduly burden the right to circulate petitions or to vote.
Hobbs also brushed aside arguments that the law violates the First Amendment by making it less likely that initiatives will qualify for the ballot.
“The First Amendment does not mandate that ballot access be easy,” wrote Assistant Attorney General Joseph La Rue who is defending her and her office.
“There is no first Amendment right to place an initiative on the ballot,” he argued in the new legal papers to U.S. District Court Judge Susan Bolton. “The fact that a regulation makes it less likely that initiatives will be enacted is therefore not constitutionally determinative.”
The 2014 law, which passed without significant debate – and which Hobbs voted for as a state senator – 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.
Attorney Sarah Gonski represents several individuals and groups that have been involved in prior ballot measures. One of the plaintiffs is Jessica Miracle, a paid petition circulator on the 2018 proposal to impose new renewable energy mandates on utilities.
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 all of the 2,604 signatures Miracle gathered were invalidated.
The measure still made the ballot but was defeated.
Hobbs, in the new legal filings through her attorneys, said the 2014 law is simply an extension of existing laws designed to protect the integrity of the initiative process.
For example, La Rue wrote, one requires a circulator to personally witness each signature.
“This requirement discourages those signing petitions from forging other electors’ signatures on petition sheets,” the legal papers state. Similarly, he cited the provision that says circulators must be qualified to register to vote in Arizona, meaning they cannot be felons unless their civil rights were restored.
“This helps ensure circulators have not been convicted of crimes that might call into question their trustworthiness,” La Rue wrote.
All of that, he said, goes to the nature of the 2014 law which requires Hobbs to remove signatures collected by circulators who have not complied with subpoenas.
“This assists the secretary in fulfilling her statutory duty to uphold the integrity of the initiative process for everyone by only certifying for the ballot those initiatives that have fully complied with applicable legal requirements and gathered sufficient signatures,” La Rue argued.
A spokeswoman for Hobbs said the secretary “has an obligation to enforce and defend duly enacted state law in good faith” but declined to comment on the specifics of the law or the lawsuit.
This isn’t the first challenge to the requirement.
A separate lawsuit was brought in state court by attorneys for the 2018 “Outlaw Dirty Money” campaign after a trial judge ruled there were no longer enough valid signatures after several petitions were disallowed due to the failure of circulators to show up. Attorney Kim Demarchi argued in that lawsuit that 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 Lopez said requiring circulators to appear in court – and tossing their signatures if they do not show – “furthers the constitutional purpose of the initiative process by ensuring the integrity of signature gathering by reasonable means.”
No date has been set for a hearing on the latest federal court lawsuit.
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.
Section 5. The right of petition, and of the people peaceably to assemble for the common good shall never be abridged. – Arizona Constitution
Anyone who’s been involved with an Arizona petition drive for a constitutional amendment, initiative or referendum might very well say that the “right of petition” has already been abridged.
The number and scope of laws governing Arizona petitions enacted by the Legislature has expanded dramatically, designed to make petitioning more difficult for citizens. The most recent examples are the “strict compliance” statutes.
The application of these statutes has limited the ability of citizens to legislate as contemplated and supported by the Arizona Constitution.
Since we can’t change the strict compliance traps without majorities in both the Arizona House and Senate and approval of the governor, it seems that the only rational way of dealing with this matter is to reconfigure how many signatures are required.
That means a difficult, expensive constitutional amendment campaign waged under the current laws but, hopefully, the last one needed to solve this problem. That said, the cost and effort to make this change is worthwhile and reflects the progressive spirit of the Constitution as enacted in 1912. More to the point, this change will open the petition process to more citizens – protected from the Legislature.
(Alternatively, but not likely, the Legislature could place this change of the Constitution directly on the ballot without signature collection.)
To directly change the percentage of signatures required currently by the Constitution — Constitutional amendment (15%); initiative (10%); or referendum (5%) – would be complicated and need a few pages on clipboards to meet statutory requirements.
However, there is a more direct, uncomplicated, but still challenging approach.
A Constitutional amendment would simply change the number of “qualified electors” from all of the votes cast for governor to the “majority” of votes cast. The effect would be to reduce the number of valid ballot measure signatures required for certification while adhering to the Legislature’s “strict compliance” requirements.
Here’s what the amendment would look like by simply inserting a four-word phrase in the paragraph defining who can legally sign a petition and what the effect would be:
Article IV Sec 1 (7) Number of qualified electors. The majority of votescast for governor at the general election last preceding the filing of any Constitutional amendment, initiative or referendum petition on a state or county measure shall be the basis on which the number of qualified electors required to sign such petition shall be computed.
This change would reduce the number of signatures needed for citizens to exercise their right to petition, making it much more likely that citizens would be able to make legislative decisions.
In 2014 for example, the total number of votes cast for governor was 1,431,983. That number has been used as the basis for computing the signature requirements to meet constitutional requirements. However, Gov. Doug Ducey’s majority vote total was only 805,062.
Here’s a comparison of the current signatures required and the proposed majority signature requirement. A minimum 30% “buffer” is generally needed to account for signatures being disallowed.
In addition to lower signature requirements, the estimated cost reduction to a campaign is considerable. Assuming it takes an average $2 per signature – including both paid and volunteer circulators – savings for statewide campaigns could mean the difference between Arizona citizens being able to vote on a ballot measure or not.
Robert Grossfeld is president of POLITICARE and The Media Guys and has 30 years of experience as an award winning, political strategist and media consultant.
A new initiative proposal seeks to block state lawmakers from proposing and voting on measures that could benefit themselves and family members.
Paperwork filed Tuesday with the secretary of state’s office would make it illegal for legislators to take any action on a measure in which they or a relative have a “direct and substantial financial interest.” That is defined to mean any financial benefit that is not shared by at least a significant portion of the general public as a whole.
“I don’t have to name names,” said Andrew Chavez who is behind the ballot proposal.
There are conflict of interest restrictions on lawmakers. But that has generally been defined as a “rule of 10,” meaning there is no legal conflict if the legislation affects at least 10 people.
That, for example, allowed Steve Yarbrough, as Senate president, to propose laws that increase funds going into vouchers even though he ran an organization that got to keep some of the dollars it distributed, as there were others in the same business.
It has meant Sen. Eddie Farnsworth of Gilbert was able to vote on changes in state laws governing charter schools despite the fact he owned one of many in the state. And it permitted Rep. David Gowan, R-Sierra Vista, who sells fireworks part of the year, to propose expanding the number of days they can legally be sold in Arizona.
It also opens the door to things like landlords pushing proposals making it easier for them to evict tenants from property they own.
The language does have exceptions allowing all legislators to vote on the state budget and changes in tax laws.
And Chavez has built in language designed to protect teachers who are legislators, allowing them to vote not just for pay raises for educators but even to propose and support legislation that would reimburse them for out-of-pocket expenses for classroom supplies.
Chavez has until July 2 to gather at least 237,645 valid signatures to put the issue on the 2020 ballot.
He is doing so under various changes in state laws approved by the Republican-controlled Legislature that have thrown new roadblocks into the path of those proposing their own measures. So the initiative proposes to repeal many of them.
One is the 2016 ban on “ballot harvesting” which makes it a felony to deliver anyone else’s early ballot to county recorders.
Proponents argued that presents an opportunity for fraud, though there was never any evidence presented during legislative hearings of that having occurred. That interfered with the practice of some community groups who went door-to-door in the days before an election, asking voters if they had returned their early ballots and offering to have them delivered.
It also proposes to undermine a tactic used by initiative foes to try to keep measures from ever getting to the ballot in the first place.
Under current law, anyone challenging initiative drives can simply issue subpoenas demanding that each circulator show up in court to verify that he or she did, in fact, circulate the petition and witness each signature. Attorney Roopali Desai, who is working with Chavez, said that creates an opportunity for abuse.
“It just gets used as a weapon to see who doesn’t show up so you can wipe out all their signatures,” she said, even if those signatures were valid.
The initiative still allows initiative foes to issue subpoenas. But it would first require the attorney who wants to issue it to provide a “good faith” basis to believe there is some problem, like a forgery.
More to the point, it would require that anyone challenging the signatures provide “an independent legal basis” for a judge to strike them, rather than simply the fact the circulator did not show up in court.
Finally, the initiative would require that early ballots go out 40 days before an election instead of the current 27, giving those who request them more time to consider the candidates and issues.
Chavez acknowledged that some of the changes, particularly on the laws governing initiative petitions, could have a direct impact on him as the owner of Petition Partners, one of the leading Arizona-based firms that helps collect signatures for a fee.
But Chavez said the real beneficiaries would be volunteer groups, like Save Our Schools, who do not have the resources to hire paid circulators and lack the funds and legal help to navigate the new requirements.
Voters will get the opportunity to increase taxes for Arizona’s highest income earners to pay for education, the Arizona Supreme Court decided.
The court unanimously on Aug. 19 overturned a lower-court ruling that tossed Invest in Education from the November ballot.
Maricopa County Superior Court Judge Christopher Coury said the initiative’s 100-word summary was misleading and disqualified it from the ballot. Coury also determined that the summary was missing key provisions from the overall language, but he too wasn’t able to summarize everything in 100 words as required by law.
The Supreme Court wrote that the summary “did not create a significant danger of confusion or unfairness.” It also ruled in favor of a lower court decision finding that “evidence of the
compensation structure and incentives presented at trial did not warrant the invalidation of the circulators’ petitions . . .“
David Lujan, the director for the Arizona Center for Economic Progress and one of Invest in Ed’s leaders, said the Supreme Court’s decision is a “big win for education and Arizona voters.”
“Voters now have the opportunity to vote on this. That was all we were asking is to give voters the opportunity,” he said. “We feel confident that when voters have a chance to decide on this measure that they’re going to vote to put millions of new dollars into Arizona’s public schools which will be good for business and the economy.”
Initiative backers seek to raise $940 million a year for K-12 education by imposing a 3.5 percent income tax “surcharge” on earnings exceeding $250,000 a year for individuals and $500,000 for married couples filing jointly.
Invest in Ed still has one final hurdle to clear – it still needs counties to verify that enough signatures are valid.
Backers of the initiative fought for two years to fix mistakes they made in 2018 when the Supreme Court ruled 5-2 to toss it off the ballot.
“A lot of what we’ve been doing for the last two years is trying to craft admission initiatives that address the concerns that were raised about the 2018 ballot measure,” Lujan said. “That’s what made the lower court ruling so surprising and so frustrating because we really feel like the way we’ve structured it this time is completely different than 2018. So I’m glad to see that the Supreme Court agreed with that.”
Jaime Molera, the former Superintendent of Public Instruction who is leading the Chamber of Commerce and Industry’s fight against Invest in Ed, said in a written statement that the decision was disappointing.
“We maintain another opportunity to appeal this decision, however, in the court of public opinion,” he wrote.
Lujan said he was cautiously optimistic in the past couple of weeks leading up to the unanimous decision, but felt the law was clear and the backers did everything right this time.
“I really could not see the Supreme Court taking us off the ballot again,” he said.
Election law attorneys were concerned over what may happen if the decision was upheld this year, because it could have muddied the waters for future initiatives not able to summarize every major provision in just 100 words.
As results currently stand, Invest in Ed will be joined on the ballot by Smart and Safe Arizona, the latest effort to legalize adult-use recreational marijuana. Strategies 360 are running both campaigns and have already raised $4.6 million and $3.4 million, respectively.
The Supreme Court only issued a preliminary ruling since the printing deadline for the voter pamphlet is on August 21. All other Supreme Court decisions on two other initiatives will likely be announced this week and a full opinion on Invest in Ed will come in the next month.
Capitol Media Services contributed to this article.
The 2022 election may feature a clash of titans: citizens versus lawmakers.
The 2021 Republican-controlled Legislature has fueled a rush of organizers to the ballot box to veto some of the most controversial legislation that passed along slim partisan lines.
GOP lawmakers also are going to test whether voters are willing to cede some of their powers to legislate.
A Republican pollster and the head of a progressive advocacy group say Arizona has reached this point because Republicans have ignored the desires of voters and are trying to weaken their power.
The slimmest margins in state history happened in the 2021 session, but even with one-vote majorities in each chamber, the politics has become more polarized.
Paul Bentz, a Republican strategist and pollster with HighGround Public Affairs, said the changes from the 2020 session to 2021 show – at least on the Republican side – that the more fringe candidates won, moving the party further from the middle.
For Democrats, he added, progressive candidates didn’t unseat any moderate incumbents, but he said that party is also moving further from the middle, which doesn’t bode well for bipartisanship, even with how close the chambers are in numbers.
Organizers were unhappy with the majority’s decision to not include Democrats in the budget negotiating process and passage of divisive bills mostly relating to elections and education. That left Democrats with trying to achieve their priorities the only way they can – through citizens initiatives and veto referendums.
Arizona is one of a handful of states that provides voters the opportunity to get an initiative or constitutional amendment on the ballot as well as the chance to veto a law the governor signs.
In recent years, citing the lack of Republican legislators’ will to approve certain laws, voters took it among themselves to legalize medical marijuana in 2010; raise the minimum wage in 2016; and in 2020 legalize recreational marijuana and increase the taxes on high income earners for additional K-12 education funding.
Republican lawmakers met each of those decisions with vast criticism, either attempting to weaken such laws or undo them altogether, but they are prevented by the Voter Protection Act.
Joel Edman, executive director of the progressive Arizona Advocacy Network, said this is just another reason why those same lawmakers are always trying to weaken the law that prevents them from undoing what a majority of voters want.
There are two ballot referrals Republicans want voters to approve next election that deal with the Voter Protection Act or the initiative process.
One allows for a single provision in a voter-approved law to be challenged in court, and if found unconstitutional, the entire law can be modified by a simple-majority of the Legislature rather than three-fourths, as current law states. The other referral would limit initiatives to a single-subject rule like bills in the Legislature.
Several other proposals failed this year and are likely to come back in the 2022 session, like increasing the threshold from a simple majority of voters to 55% or 60%.
“I think it is clear now that the majority in the Legislature recognizes that they are not aligned with the majority of Arizonans on a number of issues,” Edman said, adding that he thinks it will be the new normal to see Arizonans fight back on the ballot with more veto referendums like the state saw in 2018 for the first time in a while.
Save Our Schools Arizona formed in 2018 in response to Gov. Doug Ducey signing a universal expansion of the state’s empowerment scholarship accounts program, or school vouchers. The grassroots organization collected enough signatures in its limited 90-day window, halted the expansion and voters overturned the law 65% to 35%.
Education groups are launching another veto referendum effort to undo a massive tax cut that overwhelmingly benefits wealthy Arizonans because it’s viewed as retaliation for Proposition 208 passing last year. The “yes” campaign won by more than 100,000 votes. As of July 8, two separate groups filed five veto referenda to get onto next year’s ballot. They relate to the budget and divisive election laws.
Edman said he thinks Republicans are trying to “gut” the Voter Protection Act and initiative process because the party is trying to take advantage of their majorities, which may not last much longer.
He said the Republican-controlled Legislature has become more “authoritarian both in the policies that they pursue and in how they try to reshape the ability for anybody other than that legislative majority to make policy.”
Bentz said the 2018 voucher referendum should have been a “wake up call” for Republican legislators.
“They should be more mindful that they have not heeded that warning to this point,” he said. “They were told – multiple times – through polling and other ways that both marijuana and an education funding initiative were likely to pass. … they were aware of those things and chose not to act.”
Republicans once again this year tried to pass another voucher expansion, but failed before pulling out most of the teeth to gain enough Republican support in the House. Again, an example viewed as not listening to what voters told them overwhelmingly.
“Ultimately, what both the marijuana and education (propositions) showed is that if the electorate wants the issue, whether or not a good campaign is run is sort of irrelevant because it’s likely to pass,” Bentz said.
He added that outside special interest groups having the financial backing only make it easier to legislate on the ballot.
“If you’ve got money, it’s almost better to write the law that you want in the way that you want it, than to go through the process and be trapped by a legislator or two who can – as we see in the budget and everything else – hold the whole thing up,” he said.
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