AG clears Ducey of illegal electioneering allegation

From left are Doug Ducey and Mark Brnovich
From left are Doug Ducey and Mark Brnovich

Republican Attorney General Mark Brnovich ended the investigation into Republican Gov. Doug Ducey, saying he did not violate state law when he encouraged small business leaders to vote no on Proposition 208 last year. 

Ducey was accused of electioneering using state resources while on a phone call in his office with state employees in September, but the attorney general said it closed its investigation and won’t take any further action. 

Deputy Solicitor General Michael Catlett found that the purpose of the call was to discuss the state of the economy as it relates to the Covid pandemic, and that Ducey’s rights under the First Amendment to “speak on matters of public concern” outweighed using said rights “during the work day and using the State’s telecommunications equipment.”

“The Office does not believe that the manner in which the Governor exercised his First Amendment rights in this case is sufficient to override his First Amendment rights or support a violation of A.R.S. 16-192 (A),” Catlett wrote.  

Brnovich has also previously explained that alleged electioneering happening during a “traditional work day” is “not a relevant consideration to evaluating if public resources have been expended” when the person in question holds elected office. 

Invest in Education, the organization that brought the complaint, did not provide any evidence that Ducey “expended additional resources because the Governor responded to a question from a constituent about his views on a matter of public concern,” so  Catlett said that the public resources would have been expended regardless of his response on the ballot proposition. 

During a call with business leaders, Ducey repeatedly told them to not only vote against the income tax hike for education, but to go on the No on 208 website to get more information. 

Ducey’s aides denied that he had broken any law about using public resources to influence the outcome of an election, but shortly after Arizona Capitol Times published the story on the call, Roopali Desai, the attorney representing Invest in Education, filed a complaint with the Attorney General’s Office, saying they were disturbed to read about Ducey’s potential violation. 

Ducey’s efforts proved to be unsuccessful as voters narrowly approved the measure with 51.5% of the vote, despite more than $20 million spent to defeat it. The measure adds a 3.5% surcharge on earnings above $250,000 for individuals and $500,000 for married couples filing jointly and it iis expected to raise anywhere from $827 million to $940 million a year, depending on whose estimates are used.

In the Sept. 29 call in question, Ducey complained that the Invest in Education initiative was “a small business killer” and urged people to vote against it. 

“I’m asking the small business community to get the word out. Let’s keep our economy chugging along,” he said in an audio clip obtained by the Yellow Sheet Report, a sister publication of the Arizona Capitol Times. 

The Attorney General’s Office also pointed to a 2015 AG opinion explaining that elected officials should not be exempt from “expressing views on matters of public policy,” saying that opinion protects Ducey under the First Amendment as well.

Brnovich has previously issued opinions on similar violations including how elected officials may exercise their free speech rights without improperly using public money to influence elections. 

He also charged several elected officials including Ducey-appointee Andy Tobin, who runs the Department of Administration, for using the Arizona Corporation Commission letterhead in an email urging others to vote no on a ballot measure in 2018. Tobin and the others were each fined $225.

AG opens probe of Ducey over alleged illegal electioneering

From left are Doug Ducey and Mark Brnovich
From left are Doug Ducey and Mark Brnovich

Arizona’s Republican attorney general is investigating Arizona’s Republican governor over potentially violating state law relating to electioneering using government resources. 

As the Capitol Times reported earlier this month, Ducey may have broken a state law by using government resources to tell business leaders to vote against Proposition 208, also known as Invest in Education, and the office of Attorney General Mark Brnovich is now looking into it. 

During a call with business leaders, Ducey repeatedly told them to not only vote against the income tax hike for education, but to go on the No on 208 website to get more information. 

Ducey’s aides denied that he had broken any law about using public resources to influence the outcome of an election, but shortly after Arizona Capitol Times published the story, Roopali Desai, the attorney representing Invest in Education, filed a complaint with the Attorney General’s Office, saying they were disturbed to read about Ducey’s potential violation. 

“It’s difficult to imagine a more blatant and brazen violation of A.R.S. § 16-192,” Desai wrote, adding that Ducey ”plainly used ‘public resources’” and his “words were unquestionably ‘for the purposes of influencing the outcome’ of an election.” 

Capitol Times obtained the complaint via the state’s public records law. 

A spokesman with the Attorney General’s Office confirmed the investigation, but said he cannot comment further since it is “ongoing.”

Brnovich has previously issued opinions on similar violations including how elected officials may exercise their free speech rights without improperly using public money to influence elections. 

He also charged several elected officials including multi Ducey-appointee Andy Tobin (who now runs the Department of Administration) for using the Arizona Corporation Commission letterhead in an email urging others to vote no on a ballot measure in 2018. Tobin and the others were each fined $225. 

In the September 29 call in question, Ducey complained that the Invest in Education initiative was “a small business killer” and urged people to vote against it. 

“I’m asking the small business community to get the word out. Let’s keep our economy chugging along,” he said in an audio clip obtained by the Yellow Sheet Report, a sister publication of the Arizona Capitol Times

He repeated the talking points of the anti-Invest in Ed campaign, including that proposal has no accountability and the money “won’t get to the classroom and won’t benefit our teachers.”

Arizona court gives teachers union tax hike ‘F’

Wooden gavel

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.

Matt Beienburg
Matt Beienburg

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. 


Arizona Supreme Court pulled into political fray

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.

The Arizona Supreme Court’s integrity is under attack by supporters of the defunct Invest in Education Act who accuse the justices and Gov. Doug Ducey of collusion.

But the accusations are fueled not by hard evidence but rather by an assumption grounded in speculation and unverifiable information spread by the Ducey campaign.

The court and its justices have been swept up in election season politics that typically bypass the judicial branch. And the lasting impact may not be a shift in electoral chances of Ducey or Democratic gubernatorial candidate David Garcia in November, but a threat to judicial independence.  

On September 9, reporters on a local news talk show revealed that representatives from Ducey’s campaign had told them the Supreme Court decision on the Invest in Education Act was 5-2.

The initiative would have increased state income taxes on individual earnings above $250,000. It would have created a dedicated revenue stream of about $690 million a year for education.

The full Supreme Court ruling, including how the justices sided, has not been released yet.

Ducey and his campaign have since denied that they have any insider information on the Supreme Court ruling and he said the information given to reporters was not presented as fact.

“That’s a rumor. I have no idea about that,” Ducey said September 18.

Ducey’s campaign manager J.P. Twist dismissed the idea of a leak at the court. He did not disclose where the campaign got the vote information from, but said it was a third-hand rumor that didn’t come from the court.

But the damage was already done.


When Ducey’s campaign appeared to have inside information about the demise of the initiative, Democrats and the initiative’s supporters painted the news as a sign of clear collusion between the executive branch and the court.

“This is what corruption looks like,” Garcia tweeted. “Do Arizonans want four more years of Ducey tipping the scales of justice? I think not.”

Garcia spokeswoman Sarah Elliott said the onus is on Ducey’s team to clarify to voters where the campaign got its information.

But without the release of a full opinion on the ruling, there’s no immediate way to prove any misconduct occurred.

Joe Thomas, president of the Arizona Education Association and a Red for Ed stalwart, said Arizonans may never know what really happened, but something doesn’t feel right.

“The frustrating part is no one knows if it’s accurate. No one knows yet, although there’s an investigation whether there was a leak,” Thomas said. “But it sure looks like one.”

Between the “unprecedented maneuver” by the court to strike the initiative from the November ballot and the Ducey campaign purporting to know the vote count, the situation simply stinks, he said.

Yet he acknowledged there has been no evidence beyond what Ducey’s campaign told reporters to support accusations of corruption.

Former Supreme Court Justice Thomas Zlaket said he can’t remember a time when anyone — and certainly not a large contingent of people — seriously questioned the process or the integrity of Arizona’s high court.

Zlaket, who served on the court for 16 years before stepping down in 2002, said a breach among the justices or court staff is highly unlikely.

“I do know some members of the court and they would never, in my opinion, ever leak anything to another branch of government,” he said. “They know it’s just not the way the courts operate.”

The justices have maintained a common practice that no information on a ruling will be given to the parties, their attorneys or the public until an opinion is formally released, Zlaket said. Even law clerks are trained to keep quiet until an opinion is put out.

Half the people involved in any case are going to be unhappy with the outcome, Zlaket said. There’s nothing wrong with informed criticism, but the idea that justices or court staffers are doing something to undermine the public’s trust seems implausible, he said.

The judicial branch is unique because it’s free from the political pressure that pervades the other two branches of government, Zlaket said. The public has instilled their trust and confidence in the court to independently decide their rights and obligations, he said.

“If the public loses faith in the third branch of government and starts to believe that it is nothing more than another political arm of government like the executive, like the legislative branch, then it almost seems to me we’ve got a serious problem,” he said.

These accusations have not gone unnoticed, but the court has not started a formal investigation, said Jerry Landau, the court’s director of governmental affairs. Court staff is discussing the allegations with those involved in judicial opinions, but not questioning anyone outside the court.

“Someone made a statement. Is it true? We don’t know,” he said. “What’s the basis for it? We don’t know. … We’re simply asking if anyone knows about it, and that’s really the end of it.”


The court was targeted by the initiative’s supporters even before the purported vote was shared with reporters.

About a week after the Invest in Education Act was kicked off the ballot, Arizona Educators United, the group behind the Red for Ed movement, vowed retribution in November. They targeted Justices Clint Bolick and John Pelander — the only two justices up for retention this year.

The Invest in Education committee — the group behind the initiative — is not taking part in the effort to target Bolick and Pelander.

The response rankled even some who typically align with the goals of the initiative.

Attorney Dan Barr, on Twitter, deemed the retention election challenge “idiotic.”

“A bedrock of our judicial system is that of judicial independence, and when you start targeting judges for decisions you don’t like, then you make the judges far more wary of doing what they think is the right thing to do,” Barr said in an interview.

He said the court’s critics should have at least waited for the opinion to be released before criticizing it.

The campaign against Bolick and Pelander isn’t just absurd, he said, it’s offensive.

The state Commission on Judicial Performance Review found both justices met judicial performance standards by a vote of 27-0. And according to their reviews, both received integrity scores of 100 percent from attorneys who returned commission surveys.

Bolick said he cannot begrudge anyone engaging in civic activism, but he hopes the effect is not to politicize the court.

“Punishing judges for a good faith decision would be a very concerning precedent,” he said.


He suffered his fair share of losses during his career as an attorney, Bolick said, and he may be the only person in the state to have had two ballot measures thrown off the ballot.

“What did we do? We dusted ourselves off. We got it right the next time,” he said.

Bolick dismissed the suggestion that the justices may have been influenced by Ducey or his administration as “silly.”

The alleged leak is concerning to the justices, he said. If the vote truly was leaked, he does not believe one of his colleagues was responsible.

But he said that anyone would purport to have that information is distressing in any case.

Josselyn Berry, co-director of Progress Now, a left-leaning advocacy group, said some people were quick to suggest corruption or collusion between the Supreme Court and the executive branch after the Invest in Education Act decision because of Ducey’s push to expand the court in 2016.

Bolick worked at the Goldwater Institute before Ducey tapped him to serve on the Supreme Court. He had never been a judge, which raised some eyebrows in 2016, Berry said.

Ducey named two new justices after the Republican-controlled Legislature agreed to expand the court to seven members from five.

House Speaker J.D. Mesnard sponsored the bill to expand the court, which was criticized as an effort by conservatives to pack the court in their favor. But it’s news to him if he or his fellow legislators ever had any influence over the court.

“As the kind of head of half of one of the branches, I’m wondering where that sway is,” he said.

Berry didn’t go so far as to suggest there was a leak at the Supreme Court, but she said Invest in Education supporters are confused why Ducey’s campaign appeared to have information that wasn’t publicly available.

Supporters of the initiative were devastated when the court denied the measure a spot on the November ballot.

“A lot of people worked hard to get Invest in Ed on the ballot,” she said. “270,000 people signed the initiative. A lot of teachers and parents and people worked to get that to happen and so when it was ripped off the ballot … I think there was a lot of anger and upset because they wanted the chance to vote on that.”

But if conservative sway over the court is of the utmost concern here, targeting two sitting justices may do nothing to change that.

Most polls indicate that Ducey is favored to win re-election in November. In that case, should Bolick or Pelander or both lose in the retention election, Ducey would appoint their replacements.

Ballot measure groups file fundraising, spending reports – weed leads


Backers of an effort to legalize adult-use marijuana have raised abundantly more funds than their opposition, and are burning money faster than a skinny joint. 

Smart and Safe Arizona took in roughly $1.1 million this quarter, bringing its total to $2.7 million, though it has only $80,000 left after spending heavily on consultants and signature gathering. 

The weed campaign is leaning heavily on the dispensaries for contributions, with most of its money coming from the two biggest chains – Harvest and CuraLeaf. Harvest kicked in $245,000 in cash or in-kind contributions, and CuraLeaf contributed $200,000. Cresco Labs, another dispensary, gave the PAC $300,000 as well. 

Harvest has now outspent all other contributors, and has pumped more than $1 million into the legalization campaign. Of course, dispensaries stand to see a massive financial benefit if legalization passes, as they will have first-dibs on recreational licenses. And although Smart and Safe has burned through most of its income, it still has more cash on hand than the opposition group that formed last month. 

Arizonans for Health and Public Safety, which opposes legalizing recreational use of marijuana and previously refused to disclose who its backers are, has brought in only $50,025. 

It has two backers – one from an individual contributor who gave $25 and the rest from the Center for Arizona Policy, which contributed $50,000. 

Smart and Safe spent $100,000 on signature gathering in March – more than its opposition PAC was able to raise overall.

The competition still has months to gain traction, and once the ballot is set donors will know how many initiatives will be around to try to defeat, but the 2020 marijuana legalization effort has taken a much different shape than the last attempt in 2016.

The Campaign to Regulate Marijuana Like Alcohol, or on the ballot known as Proposition 205 raised $6.5 million during its campaign, barely outraising the opposition with $6.4 million. The opposition in 2016 was spearheaded in part by Yavapai County Attorney Sheila Polk, Gov. Doug Ducey, who Polk thanked after defeating the proposition, and the Arizona Chamber of Commerce and Industry, among others. 

The chamber won’t take an official stance on Smart & Safe even after pouring $1.5 million into the opposition in 2016, and some of the other big contributors of the anti campaign are either dead or in jail.

Bruce Halle, the former owner of Discount Tire, contributed roughly $1 million in opposition in 2016, but he has since passed away. Insys Therapeutics contributed $500,000 and its founder is now serving five years in prison for his role in contributing to the national opioid crisis.

Smart and Safe has been dubbed the likely only initiative to make it onto the ballot given the COVID-19 crisis, but several other campaigns, including marijuana, are tied up in twin battles in state and federal court to be able to collect signatures online like candidates do. 

Three of those initiatives raised more than $1 million in the first quarter. 

Arizonans for Second Chances, Rehabilitation, and Public Safety, the criminal justice initiative, brought in $1.2 million, though it burned through more than half of that. 

The Second Chances initiative, which aims to increase public safety and reduce recidivism, received all of its cash contributions from the same group, a liberal dark-money group from San Francisco called Tides, which has ties to billionaire George Soros.  

Arizonans for Fair Elections, which aims to overhaul the state’s election laws – making it easier to vote and limit spending from corporations – brought in nearly $2 million, almost all of it coming from the Arizona Advocacy Network. 

The PAC spent nearly all of that money, however, leaving it with just more than $50,000 at the end of March. 

Arizonans Fed Up with Failing Healthcare already had half-a-million dollars to start, and brought in another $1.2 million this quarter. But it spent nearly every penny it had. 

All of its money came from a California group: Service Employees International Union United Healthcare Workers West. SEIU’s former president, Andy Stern, has strong ties to Soros as well. Both the health care and election initiatives are caught up in a federal legal battle over collecting signatures online. The judge dismissed the case on April 17, but the groups pushing the initiatives are appealing to the 9th U.S. Circuit Court of Appeals. 

Then there’s Outlaw Dirty Money, which raised roughly $500,000 in the first quarter, but recently “suspended” the campaign as courts consider challenges to initiative signature-gathering laws

The two education initiatives are trailing the pack in terms of raising money. 

Invest in Education raised $230,000 this quarter, and has $170,000 remaining as of the end of March, and the Save Our Schools Act has raised a mere $1,500.

Ballot measure to tax the rich for K-12 funding launched

Mesa High School teacher Joshua Buckley explains Friday why he and David Lujan, director of the Arizona Center for Economic Progress, are proposing a large surcharge on income taxes paid by state residents who earn the most money to fund public education (Capitol Media Services photo by Howard Fischer)
Mesa High School teacher Joshua Buckley explains Friday why he and David Lujan, director of the Arizona Center for Economic Progress, are proposing a large surcharge on income taxes paid by state residents who earn the most money to fund public education (Capitol Media Services photo by Howard Fischer)

A coalition of teachers, parents and education advocates led by the Center for Economic Progress, a progressive public policy group, launched an effort Friday to raise income taxes on wealthy Arizonans to pay for the state’s public education.

The proposal, dubbed the Invest in Education Act, would increase the state’s 4.54-percent personal income tax rate to 8 percent for those who earn more than $250,000 or whose household income reaches more than $500,000, and would double the rate to 9 percent for individuals who earn more than $500,000 or whose household income is greater than $1 million.

Under current law, someone with a taxable income of $600,000 pays $25,162. That same individual would pay $14,200 more if the measure is adopted.

Consultants for the campaign estimate the proposal would generate $690 million annually in new revenue.

The coalition announced the ballot initiative on the second day of Red for Ed rallies at the state Capitol as schools statewide remained closed during mass walkouts.

Center for Economic Progress Director David Lujan and teacher Joshua Buckley, who will chair the Invest in Education Committee, refused to take any questions on Friday. They told reporters questions would be answered on Monday.

“Rather than lead, the politicians who run the state Capitol have spent years causing this crisis, choosing to serve donors and lobbyists while ignoring our students,” Buckley said in a brief statement after filing the initiative. “And when we the people have forced them to confront this crisis from time to time, we have only ever gotten half-measures and promises they never intended to keep.”

The measure would also designate 60 percent of the revenue from the tax hike for teacher salaries and the remaining 40 percent for operations, including full-day kindergarten and pay raises for student support employees as applicable uses for the funds.

Governing boards would be required to seek employee input on plans for the use of the additional dollars, and the act would define who is a teacher and who is support staff.

After Gov. Doug Ducey released his 20 percent teacher pay raise by 2020 plan, some in the Red for Ed movement questioned who among them count for such raises and criticized the plan for leaving out support staff.

The Arizona Chamber of Commerce came out against the proposal less than an hour after it was filed with the Secretary of State’s Office.

“It is never a good time to raise income taxes on small businesses and their employees; that would just create a drag on the state’s overall economy,” said President and CEO Glenn Hamer in a statement. “The tax brackets that would be targeted under this initiative historically have the most volatile collections, with wild dips in economic downturns, which would put teacher pay at terrible risk.

“Should this measure to dramatically hike income taxes secure a spot on the ballot, we will oppose it strongly, and we will urge Arizona voters to do the same.”

The effort’s launch came a day after an estimated 40,000 to 50,000 Arizona teachers, students and other supporters marched on the state Capitol to demand better pay for teachers and all public education employees, increased per pupil funding and no new tax cuts until funding was restored to the public education system.

And it also comes weeks after the Arizona Education Association, the state’s largest teachers union, and other education groups gathered in early April to discuss going to the voters.

In a text to the Arizona Capitol Times, AEA President Joe Thomas said the state’s largest teachers’ union is a partner in the coalition.

Both the income tax increase and a sales tax increase were discussed at that time.

The Arizona School Boards Association was part of the April talks with AEA, and lobbyist Chris Kotterman told the Arizona Capitol Times the coalition leaned toward the income tax option.

ASBA, though, was not enthusiastic about going that route.

Kotterman said such a proposal would just be too big of a request in Arizona when the political winds typically prevail against such ideas.

Though ASBA would not come out against an income tax initiative, Kotterman said, the organization’s perspective was that it would draw too much outside money and outside pressure against it to ultimately pass.

Petitions for ballot measures are due on July 5, giving AEA just over two months to collect 150,642 valid signatures to get on the ballot.

Current state aid to K-12 schools is $5.39 billion. That compares with $5.15 billion a decade ago.

But in that same time, nearly 79,000 youngsters have been added to the system, bringing enrollment up about 1.1 million.

So the actual aid per student has $4,949 a decade ago to $4,760 now.

What really makes a difference, though, is those dollars have not kept pace with inflation. Once that is factored in, legislative budget staffers say the money per student is worth $1,000 less than in 2008.

Multiply that by 1.1 million students and that’s the $1 billion educators say is has been taken from schools.

Howard Fischer of Capitol Media Services contributed to this report. 

Coronavirus puts brakes on signature gathering for ballot measures

Caucasian hand with silver coloured pen
Caucasian hand with silver coloured pen

Initiatives face a strong possibility of not collecting enough signatures to land on the November ballot with the COVID-19 becoming widespread, and the latest projections of cases could mean a shelter-in-place policy is coming.

Though Gov. Doug Ducey said on March 23 that the state is “not there” yet, calls from the state Legislature and U.S. Sen. Kyrsten Sinema add to the pressure the governor is facing to make that ultimate decision.

And it could spell doom for ballot initiatives this year after Dr. Cara Christ, the Department of Health Services director, said on March 25 that mid to late April could be the peak of cases with May the peak for hospitalizations.

Of planned 2020 initiatives, only Smart & Safe Arizona, the effort to legalize recreational marijuana, says it has already collected enough signatures to get on the ballot.

Arizonans for Fair Lending, an initiative that would outlaw auto title loans, was the first effort to die, but before COVID-19 had a crucial impact in the state. It announced on February 3 that it was closing down for lack of financial backing.

But now, efforts like Invest in Education, Save Our Schools, Outlaw Dirty Money, and others have to change their approach to collect signatures before the July 2 deadline. Both education initiatives must collect at least 237,000 valid signatures of registered voters before the deadline, but neither has had ample time so far.

Invest in Education has had roughly one month to collect, and Arizona Education Association President Joe Thomas wouldn’t say how many signatures they’ve collected, but said they are ahead of schedule.

Invest in Education made its first attempt in 2018 and collected enough signatures at the time, but was thrown off the ballot for a legal reasons. This year they touched up the language only to face another challenge – coronavirus.

Thomas said they are taking two approaches to collect at this point – sending people home with petition sheets to get family members and close friends to sign and send those back, and a door-to-door approach, while still abiding by the social distancing rules. He said organizers are dropping petition sheets at people’s doors and distancing themselves from potential signers who can use their own pens. This follows a clause in state statute that says the petition gatherer must be present to witness voters signing the sheet.

That plan could be ineffective if Ducey ever decides to order the state to stay home.

California Gov. Gavin Newsom already issued a “shelter-in-place” policy requiring everyone to remain at home to help diminish the coronavirus spread, which forced ballot initiative drives to shut down.

If Arizona follows suit it would have the greatest impact on initiatives and local candidates seeking election, though local candidates have a much earlier deadline to meet – April 6.

Statewide and legislative candidates can collect signatures digitally through a feature on the secretary of state’s website called E-Qual.

Although a 2016 law actually allowed for local candidates to collect online, and while a judge might agree that’s unfair, there’s probably no legal remedy for those who fail to make the ballot.

Elections attorney Kory Langhofer said COVID-19 has “every other elections lawyer” he knows asking questions about ballot access and whether campaigns could mount a successful legal challenge to delay the signature deadline or lower the number of signatures needed to qualify for the ballot due to the pandemic.

“There’s an argument to be had here, but it’s unlikely to succeed,” he said. “A crisis like this is obviously not common, but it’s also not unprecedented.”

Save Our Schools has also started sending petitions to people’s homes, and announced in a tweet that organizers are “100% committed to stopping reckless private school voucher expansion & protecting AZ tax dollars.” Organizers asked supporters to visit YesSosAz.com to request a petition packet in the mail “for the fam & friends you’re seeing within the confines of safety precautions.”

Stacy Pearson
Stacy Pearson

Stacy Pearson, senior vice president of Strategies 360, who is leading the marijuana legalization effort, along with Invest in Ed and Second Chances, Rehabilitation and Public Safety, which would increase public safety and reduce recidivism, said though her other campaigns are ahead of projections at this point, it won’t stay that way for long unless they come up with creative solutions to the problem.

“We’re trying to make sure that we’re both collecting safely and legally,” she said.

Pearson also didn’t provide the number of signatures each effort has secured so far, but each initiative needs at least 237,000 valid signatures – or more realistically, at least 340,000 signatures, in order to provide a cushion for rejected signatures.

Invest in Ed and Second Chances, Rehabilitation and Public Safety filed just five weeks ago, so in a normal year, they would be “on track” by collecting roughly 19,000 signatures per week, or about 100,000 signatures so far. With the coronavirus pandemic grinding public life to a halt, those last 240,000 signatures are going to be much harder to get than the first 100,000.

If Ducey orders state residents to stay at home, collecting those signatures will be even harder, if not impossible, given that initiatives can’t turn to the state’s online petition process.

On top of that, depending on what happens at the Legislature for the remainder of session, it’s possible there won’t be a referendum on the ballot either. Lawmakers theoretically have until August 5 to pass referrals through, according to the state Constitution, which states ballot referrals must go to the Secretary of State’s Office no later than 90 days before the general election.

Other initiative efforts that stand to face the same challenges, include Democracy and Accountability Act, which aims to bar lawmakers from voting on legislation that benefits them financially; Arizonans for Fair Elections, which would provide an overhaul of the state’s election laws, making it easier to vote and limiting spending from corporations, among other provisions; and Stop Surprise Billing and Protect Patients Act, which is intended to prevent insurance companies from discriminating against people based on pre-existing medical conditions.

The Arizonans for Fair Elections initiative has suspended operations and is playing it by ear to determine if it will pull the plug on the initiative amid the coronavirus pandemic.

Anabel Maldonado, a campaign manager for the Fair Elections Act, said organizers don’t see a way to ethically comply with public health directives while circulating signatures.

“In order to keep from risking the health of our circulators and Arizona residents, we suspended both paid and volunteer signature collection late last Tuesday [March 17],” Maldonado said.

Originally, the campaign said it had only suspended paid signature gatherers.

Maldonado said organizers have already collected “close to half” the signatures needed, but she said it’s a waiting game.

“Our teams are on standby, just in case,” she said. “Additionally, we are working with our partners to figure out what is the safest way we can organize digitally to help identify our supporters.”

Then there is also Outlaw Dirty Money, which is a constitutional amendment and has to collect even more signatures than initiatives.

Backers need to collect 356,467 valid signatures and, despite its early launch, is facing challenges. The campaign sent out an email on March 23 asking petition gatherers to turn in their sheets so organizers know where they currently stand.

terry-goddardTerry Goddard, the campaign’s chair, wrote that they already have 270,000 signatures, which is roughly 77% of the way to the minimum. Of course, that doesn’t leave any cushion.

“The challenge is that our volunteer effort will be curtailed by the health care emergency. We do not want our volunteers at risk,” Goddard wrote, later adding that the campaign hopes people will turn in their signatures within the next seven days.

Goddard said the campaign actually paused in-person signature gathering on March 18.

“We are looking at all options going forward,” he said, adding that before the state of emergency and other fallout of COVID-19 they were “on track to qualify easily for the ballot.”

He said in addition to the 270,000 collected signatures, there are at least 10,000 more that haven’t been returned. Outlaw Dirty Money finds itself in a pickle of attempting to follow health guidelines while also trying to listen to potential voters.

“We want to abide by the spirit of the governor’s executive order and not endanger anyone’s safety but also must respect the rights of thousands of signers who want to get this proposal before the voters in November as well as the hard work of thousands of volunteers,” Goddard said.

If the “shelter-in-place” does happen, on top of Legislative action at a standstill, Arizona could be looking at its shortest ballot in years.

Ducey continues claim Garcia tried to ‘rig’ education tax proposal

Arizona Gov. Doug Ducey, a Republican, left, and Democratic challenger David Garcia partake in a televised debate in the Arizona Public Media studios in Tucson, Ariz., Tuesday Sept. 25, 2018. (Kelly Presnell/Arizona Daily Star via AP)
Arizona Gov. Doug Ducey, a Republican, left, and Democratic challenger David Garcia debate in the Arizona Public Media studios in Tucson on Sept. 25, 2018. (Kelly Presnell/Arizona Daily Star via AP)

Gov. Doug Ducey has reaffirmed his claim that David Garcia tried to “rig” the election for an income tax for education even though there is no evidence the Democrat gubernatorial hopeful had any role in crafting the measure.

Ducey first made the claim in a pair of debates last week, arguing that the fact the Arizona Supreme Court blocked the Invest in Ed initiative from going on the November ballot is proof it was deliberately misleading. And Ducey, campaigning for another four-year term, said the act was not only intentional but that Garcia was partly to blame.

The governor has now repeated the same claim in a radio interview even though gubernatorial press aide Daniel Scarpinato acknowledged his boss cannot cite any link between the crafting of the measure and Garcia.

But Scarpinato, defending the governor, said that’s irrelevant. He said that Garcia, in promoting the Invest in Ed initiative, should have known the ballot language was legally flawed — even before a divided Arizona Supreme Court eventually reached that conclusion.

Ducey’s claim is straightforward.

“David Garcia tried to rig an election and the Supreme Court caught him,” the governor said — three times now.

What is undisputed is that Garcia, , who has said the state needs more money for K-12 education, was an early supporter of the proposal to increase state income taxes on Arizonans earning more than $250,000 a year. The measure was designed to raise about $690 million a year.

The proposal gathered more than 277,000 signatures to put the question to voters in November.

On Aug. 29, however, a majority of the Supreme Court took it off the ballot.

The justices said in a brief order the 100-word description, which all initiatives must have, was flawed. They said it did not accurately describe the change in tax rate for top earners, listing the increase at 3.46 percent and 4.46 percent, respectively, for higher tax brackets, when it should have said “percentage point” over the current 4.54 percent top tax rate.

The justices also said the description did not inform voters that the verbiage also would repeal an automatic indexing of tax brackets, a 2015 law designed to prevent individuals from ending up in higher tax brackets solely because their wages went up no more than inflation. That, the majority concluded”creates a significant danger of confusion or unfairness.”

Scarpinato said Ducey’s claim of “rigging” – which would be an intentional act – is backed by the Supreme Court ruling.

“Take a look at what they put out thus far,” he said.

What the court record shows to date, however, suggests the legal conclusion that the language was flawed was far from clear cut.

First, a trial judge, hearing a challenge by initiative foes, had ruled that the verbiage was not inherently misleading.

Potentially more significant, the high court ruling knocking the measure off the ballot was not unanimous, meaning one or more of the justices found it legally sufficient. There was no mention of “rigging” the election in the court order.

But Ducey’s allegations go beyond the claim that there was an attempt to “rig” the ballot measure to his specific charge that Garcia was behind all that.

The evidence says otherwise.

“He was not involved at all in the drafting and inner workings for Invest in Ed,” said David Lujan whose Arizona Center for Economic Progress actually put the ballot language together.

Garcia acknowledged his role in helping gather the signatures, “just like everybody else, just like all the teachers.” But he said all of that occurred after Lujan already had filed the proposed language with the Secretary of State’s Office, a legal precursor to circulating petitions.

Scarpinato could provide no evidence of Garcia’s involvement in the drafting. But he said voters should still blame Garcia for trying to confuse them.

“I think that David Garcia has a responsibility, as both a candidate and a leader within that movement, to have been transparent about what the initiative did and understood it himself before he went out and helped them gather a lot of signatures,” he said.

Garcia said he looked at the language after it had been filed and decided to put his personal support and the support of his campaign behind getting it on the ballot.

“But it has nothing to do with rigging an election,” he said.

And Garcia said there is no reason to charge that he should have known there were drafting problems with the language.

“I didn’t see anything that stuck out to me at that time,” he said.

“But I was not involved in its crafting, not involved with the wordsmithing,” Garcia said. “I got it at the same time probably you did or anybody else did out there in the public.”

Ducey, however, is not backing down from his claim that Garcia was trying to “rig” an election, a term that suggests knowing manipulation by fraud.

“The language did not include an honest reflection of what this did, who it taxed and how it impacted Arizonans,” Scarpinato said. “We think that’s wrong.”

Scarpinato said the proposed tax was also “bad policy.”

Throughout the campaign Ducey has insisted the state does not need new revenues to support his promise of a 19 percent pay hike for teachers by 2020 and restoration of funding, which Ducey himself had cut in 2015, of an account that helps schools pay for books, computers and other capital needs. Instead, Ducey contends that an improving economy will bring in enough without any new levies.

Garcia, who had been counting on voter approval of the initiative, has since said that if he is elected he will work with the Legislature to come up with a source of new funds for education. But he has provided no details of what he wants.


Group seeks court order to end referendum campaign

An organization that pushes for lower taxes and less government regulation is trying to deny Arizonans the option to decide whether they want to approve or veto the $1.9 billion in tax cuts enacted last month by the Republican-controlled legislature.

In new court filings, attorney Thomas Basile contends that the right of Arizonans to second-guess decisions of the state legislature does not extend to measures “for the support and maintenance of the departments of state government and state institutions.”

Basile, representing the Arizona Free Enterprise Club and Scot Mussi, its president, does not contend in his legal papers that the successful petitions drives would leave the state without the revenues needed to run the government. In fact, if the referenda on the three measures succeed and the tax cuts are canceled, it actually would leave Arizona government with a lot more money than needed to cover anticipated expenses.

But he essentially is arguing to Maricopa County Superior Court Katherine Cooper that is legally irrelevant. Basile urges her to read the constitutional right of people to refer measures to the ballot as precluding a public vote on anything dealing with taxes.

Mussi, in a prepared statement, defended that interpretation.

“All three bills directly provide for the support and maintenance of the state, were key aspects of the state’s budget, and therefore cannot be referred by Invest in Arizona, he said.

Scot Mussi
Scot Mussi

Basile and Mussi want Cooper to not only declare the three ballot measures illegal but also to block Secretary of State Katie Hobbs from accepting any petitions gathered and putting them on the ballot.

His arguments are going to get a fight from Roopali Desai. She represents the Invest in Arizona Committee. That’s the organization that started out as Invest in Education and first got voters to approve Proposition 208 in November imposing a 3.5% surcharge on taxable incomes above $250,000 a year for individuals and $500,000 for married couples.

She said Mussi and Basile are misreading the constitutional restrictions.

“Understandably, if you have the legislature imposing a tax for the purpose of state operations … then it makes good policy sense that you would not be able to refer that,” Desai told Capitol Media Services.

“It’s a completely different fact pattern when you have the elimination or reduction of a tax, which obviously means you cannot make the argument that, ‘Oh, that tax was necessary to operate the state,’ ” Desai continued. “Ironically here, our position is by eliminating these taxes it’s really going to create hardship, not just for education but for many other things.”

At the heart of the fight are three separate measure approved by Republican lawmakers which, taken in total, will enact tax cuts that largely benefit the most wealthy.

One scraps the current graduated income tax rates of 2.59% to 4.5% over the next three years in favor of a flat 2.5% rate.

A second seeks to limit the impact of Proposition 208 on the wealthy by setting an absolute limit of 4.5% on all income taxes, including that 3.5% surcharge.

And a third creates a method for the owners of small businesses to escape the surcharge entirely by creating an entirely new tax category for them.

Roopali Desai
Roopali Desai

Backers need 118,823 valid signatures on each of the three measures by Sept. 28 to place them on “hold” until the November 2022 general election. That’s when voters would get the last word on whether to ratify or reject each of them.

Mussi told Capitol Media Services he rejects any contention that, in seeking to block a public vote on the tax cuts, he is denying voters a say in the process.

“This tax reform package wasn’t adopted by unelected bureaucrats,” he said.

“It was voted on and approved by 90 lawmakers duly elected by the people of the state of Arizona,” Mussi continued. “The tax package was signed by a governor duly elected by the people of the state of Arizona.”

In arguing that the measures can’t be referred to voters, Basile relies on a 1992 ruling by the state Court of Appeals. In that case, the judges, relying on the same constitutional provision he is using here, quashed a referendum to overturn a decision by Greenlee County supervisors to impose a half-cent sales tax.

Desai, however, said that precedent provides no help to Basile because the facts are different. And the main one is that the county was seeking to hike taxes to keep government operating, not to cut them.

That point was underlined by appellate Judge Joseph Livermore who wrote the court’s opinion.

“Permitting referenda on support measures would allow a small percentage of the electorate, in Arizona 5%, effectively to prevent the operation of government,” he wrote, thwarting until at least the next election the decision of a majority of the supervisors to fund “necessary government programs.”

“The functioning of government can be as effectively damaged by the inability to acquire funds as by the inability to spend them,” Livermore wrote.

Desai said there’s another potential flaw in the litigation. She said it’s premature.

She said the question of whether the measures can be placed on the ballot are not ripe to address until after the petitions are turned in and after the secretary of state has verified there are enough signatures. Desai said she doubts that courts would move to block the secretary of state from accepting the petitions before it’s even known whether there will be enough names on them to force an election.

No date has been set for a hearing.






Judge erred in school tax ruling, attorneys say

Legal questions concept and court questions symbol and law advice icon as a judge gavel or mallet with a sound block shaped as a question mark representing uncertainty in legality issues or sentencing decision.

Political attorneys say a judge erred in his ruling to throw off the ballot the latest attempt at taxing high-income earners to raise nearly $1 billion for public education.

And they hope the Arizona Supreme Court will reverse the decision. 

Conservative political attorneys were surprised by Maricopa County Superior Court Judge Christopher Coury’s decision last month to kick Invest in Education off the ballot over what he said is its “misleading” 100-word summary. They said if the ruling stands, it will spell mayhem for the initiative process.

Christopher Coury
Christopher Coury

The decision is now in the hands of the Arizona Supreme Court, which ruled in 2018 to toss that year’s version of the citizen’s initiative off the ballot. 

That decision heightened political tensions when the 5-2 decision was leaked to the Governor’s Office before it was made public and it came shortly after the Red for Ed movement garnered a pay increase for teachers. 

Vice Chief Justice Ann Scott Timmer is now the only sitting justice who voted to overturn the 2018 lower court decision. 

This time, lawyers think the highest court may reverse the decision because the lower court judge made the wrong call. 

Coury wrote that the description creates “the substantial risk of confusion for a reasonable Arizona voter” and doesn’t include several key provisions in the initiative. 

Tim La Sota, a Republican elections attorney, said that even though he opposes Invest in Ed, he thinks the judge was wrong. La Sota said the points that Coury said should have been included in the summary took the judge about 250 words to explain, far more than 100 words allotted in a summary. 

 “So it kind of begs the question of how one would have included everything,” he said. “If it stands, it’s gonna be very difficult to utilize the ballot measure process, because I think it’s gonna be kind of a crapshoot as to what makes it and what doesn’t.”

Amy Chan, the state elections director under former Secretary of State Ken Bennett, likewise said it would be impossible to fit all the provisions Coury demanded into a 100-word summary. 

Amy Chan
Amy Chan

“That is a huge problem for any initiative groups in the future going forward,” she said. Chan, a Republican on the Citizens Clean Elections Commission, said she found it “confounding” that Coury didn’t consider that the full language must be stapled on all petitions for registered voters to read or get further information if they have questions before signing.

Before the Supreme Court is set to make a final ruling, three other initiatives went through the challenge process, and two of those came back with conflicting rulings than Coury’s decision. Judges Joseph Mikitish and James Smith ruled in cases on an initiative for criminal justice reform and recreational marijuana, respectively, both finding that the 100-word summary in each was not misleading, but also sufficient enough to not include all prominent provisions.

The Supreme Court will now have to wrestle with the fact that Superior Court judges have given very different opinions about how specific summaries on petition sheets must be, according to Paul Bender, a constitutional law professor at Arizona State University. 

“The fact that two judges went one way and one judge went the other way, I think, is something which will encourage some of [the Supreme Court] to try to see if there’s any way they can limit their [decision],” Bender said. 

But even if the high court agrees that petition sheet summaries need not detail every provision, it could still toss Invest in Education from the ballot if justices decide the explanation of the taxing provision is misleading. Still, he cautioned against the narrative that because the high court ruled against Invest in Ed in 2018, it will automatically rule the same way this year.

La Sota said he would “disagree” if the court makes that decision. 

After the 2018 initiative was kicked off the ballot, the Legislative Council, a bipartisan group of lawmakers from both chambers of the Legislature, reviewed the text of the 2020 initiative to ensure it didn’t suffer the same fate – but the Legislative Council didn’t review the summary.

Paul Bender
Paul Bender

Some states, like California and Oregon, require judges to look over initiative summaries before petition gatherers begin to collect signatures, a process designed to ensure voters are properly informed about the major provisions up front, and that initiatives aren’t kicked off the ballot for inadvertent mistakes. La Sota said the 2018 ruling was fair because the backers clearly made a mistake and the courts reflected that in the decision. 

This ruling was different. The 2020 decision came after those same backers mended their previous mistakes.

Coury ultimately didn’t see it that way, but another Superior Court judge who ruled on August 11 in a separate case on Invest in Education – a decision on the summary that goes in the pamphlet mailed to all voters – wrote an opinion in direct contradiction to Coury’s ruling. 

One key part of Coury’s decision disqualifying Invest in Ed from the ballot is that the 3.5% surcharge on top of the 4.5% tax already included for the high-income earners should be categorized as a 77.7% increase in the 100-word summary that petition circulators show voters. But Judge Randall Warner said it was wrong for the Legislative Council to add that parenthetical language to the description on the ballot. 

“The fact that the analysis is clearer without the parenthetical suggests its function is advocacy,” Randall wrote, saying it “has a misleading tendency and adds partisan coloring to the description of the tax increase.” 

The Supreme Court justices have plenty of material to guide them to make a final ruling before ballots are printed on August 21. A court spokesman said the earliest a ruling could come is August 14, but since the fourth and final initiative to file signatures has not received a lower court decision it’s more likely the Supreme Court will rule the week of August 17. 

Bender said he thought the 2018 decision was also wrong and wondered if the Supreme Court would “stubbornly stick with it or will they understand that maybe it was wrong, and they look for some way to get out of it.” 

“That’s what I would hope they would be thinking, and I think a few of them at least would do that because I think the public reception of the decision two years ago was pretty negative,” Bender said. 

Judge rules description of proposed school tax politically colored

A judge has rejected a bid by a Republican-dominated legislative panel to give voters what he concluded was a biased description of a proposed tax to fund education.

Maricopa County Superior Court Judge Randall Warner said much of what is in the explanation crafted by the Legislative Council is factually accurate. He said it does describe the tax increase on those earning more than $250,000 a year for individuals — double that for couples — and spells out who would be affected.

But the judge said that several of the provisions have a “misleading tendency” and can add “partisan coloring” to what is being told to voters.

Randall Warner
Randall Warner

Nothing in Warner’s ruling disturbs the fact that a different judge ruled that the Invest in Education measure cannot be on the ballot because the description of the initiative provided by proponents left out key information. In fact, Warner’s ruling of what is misleading is, in places, directly contrary to the conclusions reached by Maricopa County Superior Court Judge Christopher Coury.

But Coury’s ruling is going to be reviewed by the Arizona Supreme Court. And if the justices decide Coury was wrong, the measure will be on the November ballot — and what Warner ruled is wrong with the Legislative Council verbiage will become crucial.

At the heart of the battle is the plan to impose a 3.5 percent surcharge on state income taxes for earnings above that $250,000/$500,000 threshold. The money raised — about $940 million according to proponents — would fund K-12 education.

Under Arizona law, the Legislative Council made up of lawmakers from both chambers and both parties, is required to craft an “impartial analysis” of the provisions of all ballot measures. That analysis goes into brochures mailed to the homes of all voters.

Warner said that, in general, courts defer to the decisions of members of the council. But he found flaws in some of what the Republican members of the panel, who make up the majority, decided that voters should be told.

For example, Warner said there’s nothing wrong with saying that the affected income includes not just wages and salaries but also income from so-called “pass-through” businesses, where owners pay taxes not at the corporate level but on their personal income.

“But the phrase ‘from typically small businesses’ is impermissible advocacy,” he wrote, calling it “misleading.’

He said nothing in Arizona law says that only small businesses are formed in this way, saying it also can affect medium- and large-sized businesses. More to the point, Warner said the statement “unduly emphasizes the proposition’s impact on small business.”

The judge called that “a rhetorical strategy that tinges the analysis with partisan coloring.”

He also said it was wrong for the council to add parenthetical language describing the proposed tax hike as an “increase of 77.7 percent.” Warner pointed out the explanation already says the initiative’s 3.5 percent surcharge would be on top of the current 4.5 percent tax rate for incomes in that range.

Warner said that 77.7 percent figure only muddies the understanding.

“The fact that the analysis is clearer without the parenthetical suggests its function is advocacy,” the judge wrote, saying it “has a misleading tendency and adds partisan coloring to the description of the tax increase.”

And he specifically faulting language demanded by House Speaker Rusty Bowers that voters be told that if they approve the measure, the only way it can be altered by lawmakers is with a three-fourths vote of both the House and Senate, and only if the changes “further the purpose” of the initiative.

That’s true, Warner said. But it’s also “incomplete,” he said, because it ignores that the initiative also can be amended or repealed if lawmakers refer it back to the ballot, or voters themselves craft a new initiative.

The ruling comes as backers hope to get the Supreme Court to overturn Coury’s ruling, which knocked the initiative off the ballot over what he said were a series of misleading or missing pieces of information.

One of those was that 77.7 percent issue which Coury said should have been included in the 100-word description of the measure that has to be printed on all petitions. He also found flaws in the way would-be signers were told about the effect of the proposal on business taxes.

That appeal has brought out supporters and foes of the measure, each seeking to sway the justices on whether they should allow the issue on the ballot.

State schools chief Kathy Hoffman argued that interpreting what’s required in that 100-word brief the way that Coury contends would effectively kill future ballot proposals. Hoffman, along with former Attorney General Terry Goddard and Kris Mayes, a former member of the Arizona Corporation Commission, said the trial judge’s ruling creates “an unprecedented and impossible standard divorced from reality” that is so broad that “no initiative could qualify for the ballot.”

On the other side, the Goldwater Institute, the Free Enterprise Club and the Arizona Tax Research Association are urging the justices to uphold Coury’s ruling, not just on its merits but because it is “dangerous” to have funding priorities such as this would do for K-12 education set by voters at the ballot box.

Judge takes flak for decision against school tax measure

Voting ballot box isometric vector icon with paper sheet

Backers of a measure to tax the rich for public education called Judge Christopher Coury’s decision to strike it from the ballot “politically motivated” and are calling for his removal in November’s retention election. 

Arizona uses a merit selection process to appoint judges to four county superior courts and three appellate branches (two divisions of the Court of Appeals and the Supreme Court) and allow voters to retain them. 

In 2018, there was an effort to oust Arizona Supreme Court Justice John Pelander and Justice Clint Bolick since they were the only justices on the ballot after voting in a 5-2 decision to toss out that year’s attempt at taxing the rich to fund public schools. Pelander and Bolick survived and Pelander retired in 2019. 

Losing retention is rare, and has only happened once since 1978, when Benjamin Norris lost in 2014, but that won’t stop backers from trying.

Progressive lobbyist Geoff Esposito and Sen. Martin Quezada, D-Glendale were among those who tweeted about Coury being up for retention. 

“Judge Coury and his #INVESTinED decision was the reason why the ‘NO’ option was created on the ballots for the retention of Superior Court judges. Vote accordingly this November,” Quezada wrote. 

Norris, a judge in Maricopa County, was voted out largely in part due to his judicial performance review from his peers who said he was unfit to serve. Coury, on the other hand, received a perfect score from 33 of his peers. 

Coury’s Invest in Ed decision, depending on what the Supreme Court ultimately decides, could be the biggest decision he made that will motivate Maricopa County voters to try to oust him.  

Coury recently applied for a position on the Court of Appeals, but Gov. Doug Ducey chose Cynthia Bailey instead. Coury has been relentless in his career for court appointments, so it’s likely he will try again. It took him eight tries to land on the Superior Court after Gov. Janet  Napolitano turned him down six times and Gov. Jan Brewer appointed him on his second attempt during her term. 

He has served on the court since 2010 and has heard many cases, but recently he has come under fire in legal and education circles for his “political” decision that kicked Invest in Ed off the ballot, but it’s far from his first controversial decision of late.

In June, he sided with Gov. Doug Ducey and the Arizona Department of Health Services against media organizations in a lawsuit seeking information about the scope of outbreaks in nursing homes.

In July, Coury ruled in Ducey’s favor, blocking the eviction of tenants who weren’t paying rent during the pandemic, which is now up for appeal. He also settled a heated election challenge in 2018 over the petition of Mark Syms, husband of former lawmaker Maria Syms, who was trying to unseat Sen. Kate Brophy McGee in the Senate. 

Former Arizona Attorney General Grant Woods, who supports Invest in Ed and wrote an amicus brief on its behalf, said he has known Coury and his family his “whole life,” but still believes he made the wrong call over the initiative ruling. 

But Woods said he didn’t think the decision was politically-motivated, it was just wrong. He said Arizona’s founders didn’t set up the laws and the Constitution to say, “If you collect enough signatures the petition becomes a law,” instead that “if you collect enough signatures voters can decide on the ballot.”

“So the idea that you could stifle all of that because you didn’t feel that the 100 word summary at the top of the petition was adequate is to me nonsense,” Woods said.

Judge to decide whether tax on rich initiative used deceptive language

FILE - In this April 17, 2020, file photo dormant school buses are secured at a facility in Tempe, Ariz. Planning is underway to prepare for reopening Arizona's public schools in the next school year and the state's top education official says the resulting decisions that will be made and the guidance provided to local districts won't come too soon. Some districts start their school years as early as mid-July, with most others following in August, state Superintendent of Public Instruction Kathy Hoffman told KJZZ. (AP Photo/Matt York, File)
In this April 17, 2020, file photo dormant school buses are secured at a facility in Tempe, Ariz.  (AP Photo/Matt York, File)

Business interests trying to quash a vote on higher taxes on the rich sought to convince a judge Wednesday that extent and breadth of the proposed new levy is being purposely understated and misleading.

Attorneys for both the Invest in Education initiative and the Arizona Chamber of Commerce and Industry all agree that the measure, if approved by voters, would create an effective income tax rate on earnings above $250,000 of 8.04 percent, up from 4.54 percent now.

Taxes on earnings below that would remain unchanged. And estimates are that only about 4 percent of all Arizona taxpayers would be affected.

Only thing is, the description provided to those signing the initiative — and in the initiative text itself — says the measure will impose “a surcharge at the rate of 3.5 percent.” That, the business group contends, misleads the public about the extent of the change which is designed to raise $940 million a year for K-12 education.

They contend what’s really at issue is a 77.7% increase in the top tax rate. And now they want Maricopa County Superior Court Judge Christopher Coury to declare that the failure to sufficiently explain the extent of what is being proposed means the petitions and the initiative wording are fatally flawed and cannot be put before voters.

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

At least part of the objection from the business foes goes to the use of the word “surcharge.”

“What the initiative refers to as a ‘surcharge’ is a tax,” according to attorney Brett Johnson who is representing the business interests trying to keep the measure off the ballot.

And it’s not just the word “surcharge” that he is arguing to Coury is misleading.

“When the petition’s 100-word description refers to establishing a 3.5 percent surcharge’ on this income, it gives voters the misimpression that the income in question is currently untaxed,” Johnson said. “After all, ‘establish’ refers to starting something that does not currently exist.”

All that, he said, is designed by proponents of the initiative to convince people to sign the petition and support the measure.

“Voters would find the distinction between a new tax and a tax increase material,” Johnson said. “Someone might be willing to tax their fellow citizens 3.5 percent but not 8 percent.”

But for Johnson to win the case — and have the measure removed from the ballot — he needs more than his own assessment. So the foes retained economist Jim Rounds.

“It would have been improper and possibly misleading to use the word ‘surcharge’ instead of ‘tax increase,” Rounds told Coury on Wednesday. He suggested words like ‘surcharge’ and ‘revenue enhancement’ are designed to hide the true nature of what is being proposed.

But attorney Marvin Ruth pointed out that Rounds, in submitting his own argument urging voters to reject the initiative, actually used the word “surcharge.”

Jim Rounds
Jim Rounds

Rounds said he still considers it a tax hike, saying it would take the top tax rate up past 8 percent.

But Ruth pointed out it’s not that simple.

He said the surcharge, if approved by voters, would exist independent of the income tax system. And what that means, Ruth said, is the 3.5 percent levy would remain even if the legislature were to abolish the regular state income tax.

And that, Ruth suggested, makes it a surcharge versus a simple tax increase.

Verbiage issues aside, Rounds also testified that there’s something else missing from the way the levy is described in the initiative: who it would affect.

It spells out that the levy would apply to individual incomes of more than $250,000 for individuals and $500,000 for couples. But Rounds said what the initiative does not say is that it also would affect certain kinds of small businesses.

That includes not just sole proprietorships where any business income is attributable to the individual owner. It also would affect businesses incorporated under Subchapter S of the Internal Revenue Code.

Traditional corporations pay taxes under the corporate name; all earnings of S corporations are considered the earnings of the owners of that company and taxed as individual income.

And that, Rounds testified, means small businesses would be affected if the initiative is adopted, something not mentioned in either the description or the initiative itself.

David Lujan
David Lujan

But David Lujan, director of the Arizona Center for Economic Progress, told Capitol Media Services that tells just half the story.

He said that these business owners, like any other business, do not pay taxes on their gross receipts. What is taxable is what remains after all expenses are deducted — essentially the individual’s take-home profits, much in the same way employees pay taxes on what they take home and is the bottom line of taxable income on individual tax returns.

Anyway, Lujan said, he doubted there were that many business owners who had take-home profits, after expenses, in excess of $500,000.

Rounds, however, said that perhaps a quarter of those who would be affected by the initiative are business owners.

Ruth, however, said that doesn’t add up.

Using some data that Rounds himself provided, he said that total taxable income of those earning more than $200,000 — the break point used by the state Department of Revenue — was $59.8 million. By contrast, Ruth said, the portion of that attributable to businesses was less than $1.8 million, or less than 3 percent of adjusted gross income

That, Ruth said, shows that just a small portion of business filers would be affected.

“You’re doing the analysis improperly,” Rounds responded.

The hearing is expected to continue into Thursday, with Coury issuing a ruling on whether the measure can go on the ballot within days. Whichever side loses is virtually certain to seek Arizona Supreme Court review.

This trial is just the first of four which will determine what, if anything, will go before voters.

There are separate challenges to a campaign to legalize the recreational use of marijuana, a second to give judges more discretion in sentencing, and a third to both give pay raises to hospital workers and guarantee that people with pre-existing conditions can get affordable health insurance. Those trials begin this coming week.


Judge tosses proposed education tax, skewers backers


A measure to boost taxes on the state’s most wealthy can’t go on the November ballot because the description of the measure fails to inform voters of what it really does, a judge ruled late Friday.

In a 20-page order, Maricopa County Superior Court Judge Christopher Coury laid out what he concluded are both misleading statements and full-blown omissions in the legally required 100-word description that is placed on the petitions. Any one of these, he said, would have been enough to disqualify the initiative.

And taken together, Coury said, the description creates “the substantial risk of confusion for a reasonable Arizona voter.”

Christopher Coury

“Invest in Education circulated an opaque ‘Trojan horse’ of a 100-word description, concealing principal provisions of the initiative,” the judge, an appointee of Gov. Jan Brewer in 2010, wrote.

“No matter how well-intention Invest in Education’s initiative was, its nontransparent description violates Arizona law,” he continued. “Consequently, this self-inflicted shortcoming will prevent voters from considering this initiative — a result that understandably will disappoint and trouble teachers, administrators, some education advocates, and many Arizona voters.”

Joe Thomas, president of the Arizona Education Association, one of the groups backing the measure, called the ruling “bizarre,” “shameful and “political.” He said that initiative backers turned in petitions with more than 435,000 signatures.

Joe Thomas
Joe Thomas

“Instead of respecting the voters, Judge Coury inserted his own political views throughout his baseless ruling,” he said in a written statement.

Friday’s ruling is not going to be the last word. Backers of the Invest in Education measure are going to seek review by the Arizona Supreme Court.

But Coury, likely anticipating such a move, said he doubts that would be successful.

He pointed out that the justices threw out a similar measure backed by the same group two years ago, also over the issue of the adequacy of the description of the proposed change in tax rates. But Coury said the backers did not learn their lesson.

“Instead of using the phrasing that had been blessed by the Arizona Supreme Court, Invest in Education chose to use different language, as was its right,” he said. But Coury said initiative backers have no one but themselves to blame for ignoring that 2018 ruling.

“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?” Coury wrote. “The simple answer is no.”

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.

It was that description as a “surcharge,” the judge said, that became a key mistake.

He said some voters might understand that would add 3.5 percentage points on the current top state income tax rate of 4.5 percent. But others, Coury said, might interpret it to be a temporary tax, or even just a 3.5 percent increase in taxes when, in fact, the taxes owed on earnings above that point would increase by 77.7 percent.

The judge also said the description fails to inform voters of the impact of the initiative on the owners of certain businesses who pay individual income taxes versus corporate taxes.

And then there is what Coury said is the failure to explain in the description how the cash raised would be distributed, including that half would go to “teachers, classroom support personnel and student support services personnel.”

“To some reasonable voters, devoting 50 percent of the money generated by the initiative directly to teacher salaries may have sounded too rich; to other reasonable voters, devoting 50 percent of the money raised directly to teacher salaries may have sounded too modest,” the judge wrote. “The failure to disclose the distribution in the 100-word description constitutes the omission of a principal provision.”

Coury also said that, given the definition of “teacher” in the actual measure, “it is highly likely that less than 50 percent of the money raised by this proposed ‘surcharge’ would end up in the salaries of actual classroom teachers as they are commonly understood in the common vernacular.”

He also said the description failed to explain how the measure would tie the hands of Arizona lawmakers, forbidding them from reducing other funding for public education once these new funds started to flow.

Coury brushed aside the fact that each petition had an actual copy of the initiative attached, meaning that would-be signers with questions could have actually read the entire document if they had questions.

He said that those who would choose to go beyond the petition and the 100-word description would first have seen the “finding and declaration of purpose” section of the measure. And that verbiage, the judge said, only “magnifies the significant risk of confusion” of failing to mention key provisions in the description.

Anyway, Coury said the Supreme Court itself, in its 2018 ruling knocking the earlier version off the ballot, specifically rejected the argument that a confusing 100-word description is permissible simply “because the truth may be discovered in the many pages of the initiative.”

This isn’t the only lawsuit this year seeking to disqualify measures from the ballot based on the adequacy of the description.

Separate action have been filed along the same lines by foes of legalizing recreational use of marijuana by adults, giving judges more discretion in sentencing, and a package of health-related measures which includes a 20 percent pay increase for hospital workers. Hearings on those begin later this month.


Petition Partners charged with crimes in connection with bonus program

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

Attorney General Mark Brnovich is charging a firm that circulated petitions for the successful Invest in Ed ballot measure with violating state laws in how it paid some of its circulators.

The 50-count complaint alleges that some circulators hired by Petition Partners were paid a bonus based on the number of signatures they gathered. That, according to Brnovich, violates a 2017 law approved by the Republican-controlled legislature.

Each of those 50 violations is a Class 1 misdemeanor.

In bringing the charges, Brnovich did not name Andrew Chavez, the owner of the firm. That eliminates the possibility of jail time, not just for Chavez but also for the individual circulators who, according to a strict reading of the statute, had violated the law by accepting the bonuses.

But in choosing to go after the business entity that increases the possible fine for each violation from $2,500 — the maximum available against an individual — to $20,000 for each violation.

In a prepared statement, a spokesman for the company called the allegations of illegal payments “absolutely false.”

“We did no such thing,” said David Leibowitz. And he called the filing of these charges a “serious overreach” by Brnovich’s office.

“This is a political prosecution, pure and simple,” Leibowitz said, suggesting an ulterior motive.

Mark Brnovich
Mark Brnovich

“Instead of protecting the public, this case is designed to interfere with the ability of Arizona citizens to get initiatives on the ballot,” he continued. “We are confident the court will see it our way.”

But Ryan Anderson, a spokesman for Brnovich, said the Arizona Supreme Court, while agreeing to allow a vote on Invest in Ed, did conclude that several — but not all — of the bonus plans used by Petition Partners violated the law.

Voters eventually approved Proposition 208 by a margin of 51.7% against 47.3%. It imposes a 3.5% surcharge on incomes of more than $250,000 for individuals and $500,000 for couples, designed to raise about $940 million a year for K-12 education.

Nothing that occurs in this criminal case can affect the outcome of the vote.

What it can do, however, is clarify the rules for what is not allowed in hiring paid circulators.

The 2017 law was crafted by then-Rep. Vince Leach, R-Tucson, now a state senator, who has also been the author of other measures which have effectively created new hurdles for individuals to exercise their constitutional rights to propose their own laws.

It does not make it illegal to pay people to gather signatures. But it spells out that payment cannot be on a per-name basis, the method that, until that time, had been used by companies to encourage people to get as many signatures as necessary to qualify measures for the ballot.

That restriction, however, applies only to ballot measures. It does not limit how political candidates can pay petition circulators.

Drew Chavez
Drew Chavez

In the court hearing earlier this year there was testimony about how Petition Partners paid circulators based on the hours worked. But attorneys for the Arizona Chamber of Commerce and Industry presented evidence of several different kinds of incentives used by Petition Partners to encourage greater production.

One of those, known as Spin The Wheel, was specifically upheld as legal by the Supreme Court on the premise that all circulators got a chance to go for that bonus, regardless of how many signatures they got.

But the charges brought by Brnovich go after separate programs known as “Duel for the Dollars” and “Weekend Warriors” the ones that the attorney general charges had people getting extra money based on the number of signatures collected for the Invest in Ed initiative. Amounts ranged from $20 to $150.

Anderson said it was a conscious decision to go after the company and not its owner or any of the circulators.

“Our intent is to hold signature-gathering companies accountable and to ensure compliance with the law ,” he said. More to the point, Anderson said, is sending a message for future years.

“We are seeking accountability and corrective action for the industry moving forward,” he said.

In filing the charges, Brnovich puts his office in the position of defending the constitutionality of the law limiting how petition circulators can be paid. That has never been tested in Arizona.

The actual charges were filed late last month and company officials had already been served. But Anderson said that there was a conscious decision not to publicize the case until now to ensure that it did not affect the outcome of the election.

Editor’s note: A previous headline to this story erroneously said Petition Partners was indicted, when in fact criminal charges were filed without involvement of a grand jury.


Proposed tax on rich has public support, group says

money school college debt tuition 620

A group pushing a ballot measure to tax Arizona’s top earners to fund public schools say they have the voters on their side.

A poll commissioned by the Invest in Education Committee found that 39 percent of likely voters definitely support the proposed measure and 24 percent probably support it.  Twenty-one percent definitely oppose while another 8 percent probably oppose it.

The Invest In Education Act would raise $690 million a year by increasing the income tax rate from 4.54 percent to 8 percent for individuals making more than $250,000 and families making over $500,000. It would also increase income taxes to 9 percent for individuals making over $500,000 and families making over $1 millions dollars.

The poll, taken over the phone on live recorded calls, recorded 646 interviews on landline and cellular phones from May 21-24 with a margin of error of +/- 3.9 percent. The poll was commissioned by the Invest In Education Committee and conducted by FM3 Research, a California group that has conducted polling in Arizona for Democratic candidates and issues.

Organizers for the proposal said Wednesday it is on track to submit the 150,642 signatures needed by the July 5 deadline to place the measure on the November ballot, but did not disclose the current number of the signatures the initiative has.

Joshua Buckley, Chair of the Invest in Education Committee, said the group plans to ramp up its effort to get signatures after getting the results back from the poll.

The amount of money that wealthy Arizonans saved under the Tax and Jobs Act, the GOP tax bill Congress passed in December, will be greatly diminished if the Invest In Ed Act is passed, cutting the average amount saved from $47,940 to $18,232 for the top 1 percent, according to the Institute on Taxation and Economic Policy.

In the past, Arizona has used sales taxes to increase funding for education and state revenue, but the Invest In Education Committee says sales taxes put an unfair burden on middle and lower income groups. According the Institute on Taxation and Economic Policy, Arizona already has the 11th highest sales tax in the nation.

If the Invest In Ed Act appears on the ballot in November and passes, then it would be the first time income taxes in Arizona have increased since 1992, and the top 1 percent tax rate would be at its highest in nearly 3 decades ago.

Stacy Pearson: A PR pro with no BS

Stacy Pearson
Stacy Pearson

Stacy Pearson used to ask the questions and now she prepares how to answer them.

The senior vice president at Strategies 360 was a reporter before eventually jumping to “the dark side,” where she now works to get initiatives on the ballot. She used to cover education and said it’s depressing how little has changed since then.

She is currently running the campaigns for Smart and Safe Arizona, Invest in Education and Second Chances, Rehabilitation and Public Safety, but she still manages to find time to watch her daughter play beach volleyball and participate in a “mom’s who write class,” which she says is therapeutic.

Originally from Chicago, she has a White Sox hat hanging up in the corner of her downtown Phoenix office and loves to talk about Chicago food, just as long as that food is not deep dish pizza.

Pearson sat down with Arizona Capitol Times to discuss reporting and being married to a police officer while trying to get recreational marijuana legalized.

Are you from Chicago?

Originally yeah, but I’ve been here since I was three.

Are you a deep dish fan?

Thin crust. Definitely thin crust … we are a thin crust family. It’s like a religion.

Outside of the White Sox, are there aspects of Chicago you miss?

The ethnic food. … Any possible type of cuisine you can find in Chicago, and it’s really good.

You used to be a reporter.

I was, yes. A journalism grad. I went to ASU. Then I worked at the West Valley View, which was a really good experience. You’d be amazed at how angry people get when their free newspaper wasn’t dropped off at the time. It was really, really interesting

What made you want to jump to the dark side? 

Hilariously, this totally dates me, but I was doing a story on kids that had gotten tangled up with Napster and I was sitting across from this crusty central casting curmudgeon journalist who had retired from the Philadelphia Inquirer named Bruce, and he’s staring … and, of course, I’m late past deadline, but he’s glaring at me. I’m finally like, “Bruce, what?” And he was like “the definition of irony. You’re about to give away a story for free about the music industry no longer giving away music for free.” And there’s this minute where I’m like “Oh, no, I’m wasting my life. What am I doing?” So then shortly thereafter, I got a job at the State Tourism Office, which was really fun.

Did you report on a specific beat?

Education and military affairs, which ironically, I have no military experience. And it was a time when F16s were falling out of the sky. There were like nine crashes in a year or two years, something like that. So I think the Air Force Base got very lucky in how little I knew, or the questions I thought to ask about what was happening out there.

So as someone who once covered education and now deals with it in your current job via initiatives or what have you, what have you noticed has improved since you were reporting on it? Or has nothing improved since then?

So I think that’s probably the most depressing part is it is really the same issues that I was covering which at that time were failing infrastructure at schools, it was the Students FIRST time when they were looking at ways to make funding more equitable. It’s all still the same and we still have infrastructure needs. We still have class sizes that are too large. We have recruitment and retention issues in the profession. A lot of this is exactly what was being discussed then. I think the difference though, the charter schools were just in their infancy. So we’ve certainly cycled through good ones and great ones and ones that didn’t make it. So it’s been interesting to watch that unfold.

Since you jumped into the PR world, what are some of the biggest differences you can appreciate more now being on that side of the aisle?

I think one of the most interesting things is you always knew as a reporter, people were organizing a way not to call you back. I didn’t realize it was that coordinated. … I mean, there are meetings about calls, about questions, and trying to get clients and campaigns as prepared as possible for questions reporters have. There’s a lot of work going on in the back end.

What is it like going from asking those questions to preparing how to answer them? 

It totally depends on which journalist, but there are a handful of journalists in the market that when they call you know you’re in trouble Like Robert Anglen, for example at The Arizona Republic. If Robert’s calling and asking questions about anything, he already has the answers. … It really depends on the reporter and what the story is, but I think we’ve got a pretty incredible amount of talent in the market, in journalism, across the board.

Are there certain reporters who you feel like constantly get things wrong or they’re just out to get you?

We’ve been really lucky. I haven’t had any adversarial relationships with reporters. I mean, I understand the job that they’re trying to do and I think I have the reputation that I don’t BS reporters. If there’s something that I don’t want to talk about, I can say that “Hey, we’re not going to discuss that.” … There’s no point in misleading if we’re all stuck here on this planet together.

You used to work for Jason Rose, who is a bit of a crisis management specialist. What are some of the worst things you’ve heard people say to the media that you would have advised against? 

I think anytime a legislator claims legislative immunity, things are going off the rails. Something very bad has just happened. Legislative immunity is probably the worst one.

Have you ever considered running for office?

No, I never considered running for office. I lost for the freshman class president in 1991 and I really never recovered. I’ll never do that again.

You’re married to a cop. What’s it like working on the push to legalize adult-use marijuana, how does that dynamic work? Do you ever take work home with you?

My husband’s the president of the Mesa Police Association. We’ve got a couple of lines that we have crossed this cycle. Marijuana being one and criminal justice being another. I do take that work home and our daughter is going to be 18 in October so this is going to be the first election she can vote in, which is gonna be really interesting. But yeah, my husband’s been a street crimes sergeant for about 17 years now, so it’s been interesting. He doesn’t spend a whole lot of time dealing with marijuana arrests anymore. I mean, he spends a ton of time with fentanyl and some of the more lethal drugs that everybody sees today.

If there was a movie made about Arizona politics, what would the story be?

I think [former Sheriff Joe] Arpaio’s Weekend at Bernie’s run would be really, really interesting to watch. I’m pretty sure he’s reverse aging so I don’t know what’s happening there, but I think that would be really interesting.

Supreme Court restores proposed tax increase to ballot

The Arizona Supreme Court from left are James Beene, Andrew Gould, Ann Scott-Timmer, Chief Justice Robert Brutinel, Clint Bolick, John Lopez, and Bill Montgomery.
The Arizona Supreme Court from left are James Beene, Andrew Gould, Ann Scott-Timmer, Chief Justice Robert Brutinel, Clint Bolick, John Lopez, and Bill Montgomery.

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. 

Supreme Court to release full Invest in Ed opinion Friday

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.

The Arizona Supreme Court is poised to release its full opinion on striking the Invest in Education Act from the ballot on Friday.

The full decision, which will lay out how each justice voted and detail arguments they made for and against allowing the initiative to go on the ballot, comes out nearly two months after the court booted Invest in Education from the ballot.

Justices were split on the decision, but the full opinion will make clear which justices sided which way.

A brief order put out by the court on Aug. 29 indicated a majority of the justices ruled Invest in Education’s description of its proposed tax hike was inadequate and could create “a significant danger of confusion or unfairness.”

The citizens initiative would have boosted taxes on Arizona’s top earners in order to better fund K-12 education.

Release of the full opinion will also shed light on whether Gov. Doug Ducey’s campaign may have had any inside information on the decision before the general public.

Ducey’s campaign purported to know the vote split shortly after the court released its decision on Aug. 29, causing the governor’s opponents to allege collusion and corruption between the Supreme Court and the executive branch.

Invest in Education supporters also blamed Ducey’s 2016 expansion of the Supreme Court from five to seven judges for keeping the citizens initiative off the ballot. But without knowing how the justices sided on the ruling, it was impossible to know what role, if any, the expanded court played in the downfall of the Invest in Education initiative.

Tax on rich, legalized marijuana take lead in early ballots

Marking A Tick Box

Editor’s note: This is a developing story that will be updated as more results become available. This story was first published at 8:52 p.m., and last updated at 9:35 p.m.

Arizonans are on track to approve ballot measures to tax the rich to fund public education and legalize adult-use recreational marijuana. 

Voter approval of Proposition 208, the education tax hike also known as Invest in Education, would be a major defeat for Republican Gov. Doug Ducey, who has made it his mission to only cut taxes while he runs the state.

While there are still hundreds of thousands of ballots left to count statewide, Prop. 208 leads 54.4% to 45.6%. The marijuana initiative, also known as the Smart and Safe Act, is ahead 60% to 40%. 

Backers for Prop 208 declared victory at around 8:30 p.m. and the Associated Press called the race for Prop 207.

Arizona saw record turnout across the board in this election surpassing the previous record from 2016 from early ballots alone. And many races saw a record amount of cash pouring in in the form of independent expenditures committees, which predominantly were used on advertising. 

Invest in Education, which will add a surcharge of 3.5% on taxable income for individuals who earn more than $250,000 a year or $500,000 a year for couples, is promoted as an annual infusion of about $940 million for K-12 in the state. About half of that will be for schools to hire teachers and classroom support personnel. The measure spawned out of the Red for Ed movement in 2018 with teachers and educators frustrated over the state’s low teacher pay and high student-to-teacher ratio. 

The yes group raised roughly $21.6 million – mostly from national education groups with local ties – and spent more than $16 million.

The no group, which was backed by the Arizona Chamber of Commerce and Industry and former appointed Superintendent of Public Instruction Jaime Molera, has spent $13.6 million.

First reported in the Yellow Sheet Report on Oct. 30, Prop 208 backers complained about the Chamber  spending $16 million or so on TV advertising, but only reporting $5 million across three groups. The day after our sister publication posted the story, the Chamber reported an additional $8.6 million, which was several days after the deadline for the Pre-General campaign finance report. 

Prop 207 would make it legal to possess up to one ounce of marijuana, and allow people previously convicted of marijuana crimes to have their records expunged by the courts. The sale comes with a 16%  excise tax.

Backers spent the better part of the past four years after a narrow defeat in 2016 picking up support while also watching its opposition diminish. Money reflects those changes and apparently so did the early results. Backers received and spent more than $5 million, slightly less than 2016. Opposition hasn’t cracked $1 million in fundraising, which is a far cry from 2016 where it spent more than $6 million.

It did receive a generous contribution from the Chamber as well in the waning days of the election. The Chamber gave $100,000 after putting in more than $1 million in 2016 and vowing to not partake in the race –– at least financially.

When it’s all said and done, the Chamber would have spent roughly $10 million to defeat two ballot measures only to suffer two defeats of its own.

The Breakdown: No turning back


Maricopa County Superior Court Commissioner Tracey Nadzieja stands with Brianna Westbrook after Nadzieja was sworn into office on October 12, 2018, making history as the first transgender judge in Arizona. Westbrook said Arizona's transgender community is small, and Nadzieja's accomplishment was celebrated as a step forward across the state. PHOTO COURTESY OF BRIANNA WESTBROOK
Maricopa County Superior Court Commissioner Tracey Nadzieja stands with Brianna Westbrook after Nadzieja was sworn into office on October 12, 2018, making history as the first transgender judge in Arizona. Westbrook said Arizona’s transgender community is small, and Nadzieja’s accomplishment was celebrated as a step forward across the state. PHOTO COURTESY OF BRIANNA WESTBROOK

Last week The New York Times warned that the Trump administration may soon define 1.4 million transgender Americans out of existence.

One of those Americans is Tracey Nadzieja, who was just this year sworn in as the first known transgender judge in Arizona.

And she’s not the only one now aiming to be a ray of hope for Arizonans. Democrats have put a lot of resources into energizing the youth vote. But will their efforts pay off?

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Music in this episode included “Creative Minds,” “Funky Element” and “Energy” by Bensound.