Issue: Outlaw Dark Money

A federal judge on Monday refused to strike down an Arizona law that allows a judge to invalidate otherwise legitimate and qualified signatures on an initiative petition.

In a 19-page ruling, Judge Susan Bolton acknowledged that the 2014 statute could make it more difficult for those proposing their own laws and constitutional amendments to put their proposals before voters.

But Bolton said challengers did not present enough evidence, at least not yet, to show that allowing it to remain in effect presents irreparable harm, either to voters or those who hope to propose future ballot measures. So, for the moment, the law and its hurdles will remain on the books – and likely will be in place as groups start submitting petitions for issues to go to voters in 2020.

The law, which passed without significant debate, spells out that paid circulators and those who do not live in Arizona must first register with the Secretary of State or their signatures collected do not count.

But the significant provision deals with the ability of those trying to keep a measure off the ballot to subpoena circulators to appear in court to verify both their own eligibility and how they gathered the signatures. Specifically, what’s been dubbed the Strikeout Law says that if any circulator who has to register does not show up, then all the signatures that person gathered can be struck, potentially leaving the petition drive short of its goal.

Not An Academic Issue

The ruling comes as Arizonans for Fair Lending, one of the groups that filed suit, is circulating petitions asking voters in 2020 to cap interest rates on auto title loans at no more than 36 percent annual interest. Current laws allow lenders to charge more than 200 percent.

Rodd McLeod, campaign manager for the effort, said the decision allowing the law to remain on the books, at least for the time being, will make it more difficult to get the 237,645 valid signatures needed by July 2 to qualify for the ballot.

“This Strikeout Law is a gift to out-of-state corporations like predatory lenders,” he said. “It allows them to hijack our democracy and allow people the right to vote to lower interest rates.”

The 2014 law already has kept one measure off the ballot.

Voters did not get to decide last year on the “Outlaw Dark Money” initiative, which sought to put a provision in the Arizona Constitution to require any group seeking to influence a political race or ballot measure to reveal the identity of anyone who contributed more than $10,000.

In that case, challengers issued subpoenas for 15 circulators. When none appeared, the judge disqualified the 8,824 signatures they had collected, leaving the petition drive short.

The Arizona Supreme Court upheld the law and the decision to keep the measure off the ballot, ruling that the statute “furthers the constitutional purpose of the initiative process by ensuring the integrity of signature gathering by reasonable means.”

That led to this new lawsuit, with attorney Sarah Gonski telling Bolton that the law “unconstitutionally discourages the people of Arizona … from exercising their fundamental right to make law without consulting the Legislature.”

For example, Gonski argued, the requirement could reduce the number of people available to circulate initiative petitions. She said that groups seeking to change the law would be reluctant to hire paid circulators from outside the Phoenix metro area for fear they would not show up in court, with the result of all their signatures being tossed.

Bolton disagreed. “There is insufficient evidence of a ‘chilling’ effect,” she wrote.

The judge was more willing to consider the argument that organizations pushing initiative measures will have to gather more than the minimum number of signatures required for fear some would be thrown out.

“Ballot-access measures like the Strikeout Law can restrict political speech,” Bolton said. But she said that challengers to this point “have simply failed to show facts or circumstances demonstrating such restrictive effect.”

Lawmakers Exempt

Bolton also showed interest in the fact that the legislators who approved the law on disqualification of signatures applied it only to ballot measures and not to nominating petitions for themselves and other elected officials.

Attorneys for the state argued that distinction is merited, citing the Voter Protection Act. That constitutional provision says once a measure is approved at the ballot box it cannot be repealed by the Legislature but instead must be taken back to voters.

But Bolton said that hurdle, by itself, is not enough to warrant the difference.

“The ‘near permanency’ of an initiative once passed is more of a legal outcome than a compelling government interest justifying (the state’s) chosen method of incentivizing subpoena compliance,” the judge wrote.

Still, none of that was enough for Bolton to grant Gonski’s motion to bar the state from enforcing the law at the next election.

She said challengers had failed to show they would suffer “irreparable harm” – one of the standards a court uses to determine whether to issue an injunction – if the law remains in effect. In fact, the judge noted, at least two of the groups that sued, Arizonans for Fair Lending and NextGen Climate Action, have provided no evidence that they will be deterred from conducting future campaigns in Arizona while the law remains in effect.

Because the lawsuit challenges an election law the defendant in the case is Secretary of State Katie Hobbs.

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

Editor’s note: This story has been revised to include comment from a spokesman for Arizonans for Fair Lending.