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Issue: strict compliance

Court ruling, lack of signatures sink ‘dark money’ ballot measure

A federal appeals court rejected Todd Fries' argument that his conviction on chemical weapons charges should not have been taken into account when he was sentenced for bomb possession.

A new court decision Thursday has left backers of a ban on “dark money” even further from their goal of getting the measure on the ballot.

In an extensive ruling, Maricopa County Superior Court Judge Teresa Sanders rejected arguments by attorney Kim Demarchi that Secretary of State Michele Reagan had improperly and illegally disqualified some petitions submitted in July. Sanders said Reagan acted within what the law requires when petitions do not conform with legal requirements.

And Demarchi failed to convince Sanders that she should require Reagan to count the signatures on petitions submitted by people who foes of the initiative argued were not legally qualified to circulate them.

Attorney Kory Langhofer who represents initiative foes had alleged that some of the circulators were convicted felons while others had failed to provide legally required addresses. But Sanders did not have to specifically address whether those claims were true.

She pointed out that Langhofer had issued valid subpoenas for each of the people whose eligibility to circulate petitions was in question. When they did not show up in court, Sanders said she had no choice under Arizona law but to declare that all signatures collected by each of them could not be counted.

A few of the claims over whether signatures should be counted did, in fact, go Demarchi’s way. But she conceded that the number of signatures that the judge disqualified exceeded the number she ordered restored to the count.

Demarchi said she was still tallying the numbers. But Langhofer said he believes the ruling, unless overturned, leaves initiative proponents about 8,000 short of what they need.

The ruling is the second bit of bad news for the initiative in as many days. On Wednesday, Reagan said the random sample of signatures reviewed by the 15 county recorders showed the measure came up 2,071 short of the 225,963 valid signatures needed to put the issue on the November ballot.

The initiative is designed to overturn various laws enacted by the Republican-controlled Legislature that allow certain groups to influence state and local political races without disclosing their donors.

It would put a provision in the Arizona Constitution spelling out that the identity of any individual who gave at least $2,500 must be listed on financial disclosure reports. Failure to comply would result in a fine equal to three times the amount that was at issue.

Langhofer represents officials involved with several of the “social welfare” groups that now are exempt from disclosure but would be subject to it if the initiative were to pass.

Thursday’s ruling does not end the legal battle.

Aside from Demarchi’s lawsuits against county recorders, she is challenging the constitutionality of two laws that put additional hurdles in the path of those trying to put measures on the ballot.

The larger issue is a 2016 law that requires all initiative petitions to be in “strict compliance” with each and every election law. Prior to then, courts had ruled that petitions need be only in “substantial compliance” with the law.

Demarchi argued that the Republicans who approved the change were interfering with the constitutional right of people to propose their own laws.

But Sanders pointed out the “substantial compliance” standard is not in the Arizona Constitution but instead strictly a court interpretation. She said that means state lawmakers were free to alter the standard without infringing on the rights of the courts.

And the judge said that mandating strict compliance with election laws “are reasonable means of pursuing important state interests.”

That ruling is virtually certain to be reviewed by the Arizona Supreme Court, as a judge in another case, this one dealing with a tax hike on the rich to fund education, declared the standard to be unconstitutional. But Sanders’ ruling is in line with a judge in a third case, this one on whether the renewable energy measure can be on the ballot, who said lawmakers are free to alter the standard.

Sanders also rejected an argument by Demarchi that lawmakers have no legal right to require judges to automatically throw out petitions — and all the signatures on them — if a circulator does not respond to a subpoena. The judge said the law “represents a reasonable means of fostering transparency, facilitating the judicial fact-finding process, inducing compliance with valid compulsory process, and mitigating the threat of fraud or other wrongdoing infecting the petition process.”

Demarchi said she also will seek Supreme Court review of that ruling.

Groups take voter initiative restriction to state Supreme Court

petitions

Several organizations are asking the Arizona Supreme Court to void a law they say will make it more difficult for groups like theirs to put initiatives on the ballot.

But they have to get the justices to let them sue in the first place.

In new legal filings, attorney Roopali Desai is attacking the 2017 law that says all voter-proposed ballot measures must be in “strict compliance” with every election law. By contrast, the law up until that point, as interpreted by the courts, has required only “substantial compliance.”

That distinction is critical. It means that minor errors that courts might consider innocent, like signatures on petitions outside the lines, erroneous dates entered by signers, and differences in type sizes and margins, would require judges to throw out signatures and potentially entire sheets of signers.

What the new law has done, Desai said, is chilled efforts by groups to craft their own initiatives.

But Desai has yet to get the chance to make that argument.

A trial judge and the state Court of Appeals threw out the case, saying that the new law has yet to be enforced.

More to the point, the judges said no initiative is in danger of being thrown off the ballot for failure to comply with the new standards. And that, the judge said, means the case is not legally “ripe” for them to decide.

Desai hopes to convince the Supreme Court otherwise.

At the heart of the fight is the fact that many business interests and Republican legislators who support them have never liked the fact that the Arizona Constitution allows voters to craft and enact their own laws. That ability has led to things like a ban on gestation crates for pigs, a ban on leg-hold traps on state lands, allowing patients to use marijuana for medical purposes, and just two years ago, an increase in the state minimum wage.

It was that last measure, approved by voters on a 3-2 margin, despite strong opposition from the business community, that led GOP lawmakers to approve the stricter standards.

Desai contends the move illegally impairs the constitutional right of voters to propose their own laws.

“Every Arizona citizen is harmed by this legislative power grab,” she said in her filings with the state high court. “This law would result in making virtually every aspect of the initiative process more difficult and expensive.”

And Desai told the justices they should not balk at addressing that issue now simply because no initiative currently is in danger of being tossed from the ballot because of the new requirement.

“The mere threat of enforcement of an unconstitutional law that infringes upon a fundamental constitutional right is sufficient to confer ripeness,” she wrote.

Desai said it would be wrong — and an unconstitutional violation of rights — if initiative organizers had to wait until they were in danger of having a measure thrown off the ballot before challenging a law they contend interferes with their legal ability to craft their own laws.

For example, she said, what if the Legislature decided that initiative petitions can be circulated only after the sponsoring organization submitted a $5 million filing fee.

“If such a statute unconstitutionally hinders the ability to pursue an initiative, then it is already depriving the plaintiffs — and all other Arizonans — of their constitutional rights,” Desai wrote. She said it should not be necessary for a group to prove that they would be unable to raise that filing fee.

The same, she said, is true here, with the stricter requirements meaning that groups seeking to put measures on the ballot would have to spend additional money in getting legal advice and in training and securing additional circulators. And Desai said just the additional doubt about whether a measure might be voided for some technical violation of the new standard will make it difficult for organizers to raise money for a petition drive.

“Every advocacy group — and every Arizonan — that decides not to bring an initiative because it fears it cannot overcome the massive burdens that a strict compliance standard causes is already suffering a constitutional injury,” Desai wrote in asking the justices to consider the issue. “Every Arizonan who is deprived of the ability to vote on initiatives that ‘die on the vine’ due to such factors is already suffering a constitutional injury.”

Anyway, Desai said, cases like this, where the question of what standards can be enforced on voter-proposed ballot measures, are “issues of great public importance that are likely to recur.”

She also said the issue is not academic for her clients — the people who want the new law voided — because each of them has been involved in the past in putting measures on the ballot. They include the Animal Defense League of Arizona, Planned Parenthood Advocates of Arizona, the Arizona Advocacy Network, and Friends of ASBA, short for the Arizona School Boards Association.

The justices have not set a date to consider the petition.

Justices explain why Invest in Ed measure booted from ballot

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Carmen Forman contributed to this report. 

Many hurdles make ‘citizen veto’ hard to come by

Activists are attempting to repeal a trio of laws approved by the Legislature and signed by the governor this year. But pulling off a referendum, known colloquially as a “citizens’ veto,” isn’t easy.

Even if activists are able to gather the necessary 75,321 valid signatures from registered Arizona voters in the allotted 90 days, and even if the referenda and signatures survive inevitable legal challenges, lawmakers always have a trump card: They can simply repeal and replace the laws.

Save Our Schools, a political committee that formed after a group of teachers and public education advocates met at the Capitol while protesting a bill to expand Empowerment Scholarship Accounts, essentially school vouchers, is attempting to repeal that measure.

Voters of Arizona, a political committee headed by former Phoenix Mayor Paul Johnson, is targeting two initiative laws – one that bans paying initiative petition circulators on a per-signature basis, upending the economic model upon which signature gathering firms are based; and another that requires initiatives to adhere to “strict compliance” with the law, meaning initiatives could be voided for strictly technical issues.

Voters of Arizona is using paid petition circulators, while the Save Our Schools is all volunteer based. And that distinction, some observers say, may mean the difference between being able to pull off a referendum or falling flat.

No statewide referendum in modern times has made it to the ballot without paying for at least some of its signatures.

That’s at least in part because referendum campaigns begin after the legislative session ends, just as temperatures start to creep into the triple digits.

Drew Chavez
Drew Chavez

Drew Chavez, owner of Petition Partners, the state’s largest petition circulating firm and the firm contracted to work for Voters of Arizona, said lawmakers know that it’s harder to gather signatures in the middle of summer, and he accused the Legislature of dragging out the 2017 session another week or two just to ensure the temperatures were unbearable for those attempting to refer the laws to the ballot.

Lawmakers adjourned the 2017 legislative session on May 10, meaning referendum campaigns have until August 8 to gather signatures.

Still, referenda organizers say they’re on track to accomplish the herculean task of gathering more than 75,000 valid signatures during the hot summer months.

Dawn Penich-Thacker of Save Our Schools Arizona announces a campaign to repeal the recent expansion of the state's school voucher system on May 8, 2017, at the Arizona Capitol. (Photo by Rachel Leingang, Arizona Capitol Times)
Dawn Penich-Thacker of Save Our Schools Arizona announces a campaign to repeal the recent expansion of the state’s school voucher system on May 8, 2017, at the Arizona Capitol. (Photo by Rachel Leingang, Arizona Capitol Times)

Dawn Penich-Thacker, spokeswoman for the Save Our Schools campaign, said despite the group’s thin financial backing, the petitions are flying off the shelves, and they’re on track to meet their goals.

“It seems like we can’t print the petitions as fast as people are wanting more,” she said.

And Chavez said Voters of Arizona, which is targeting two initiative laws, is already ahead of schedule.

“We set extremely aggressive goals, and we have surpassed them by 15 percent every day. And I think that’s a combination of we’re very good at what we do, and people are really looking for us. For the first time ever, people are seeking out our project,” he said.

But even if the campaigns clear the first hurdle of gathering enough signatures, they still have several other hurdles to clear before voters get a chance to vote on the laws.

The referenda will almost certainly be challenged in court. Opponents frequently challenge the validity of signatures on the petitions, and often get a judge to invalidate up to 30 percent of the signatures for various reasons. That means a referendum campaign actually needs to collect upwards of 100,000 signatures to provide a cushion.

Then a referendum itself is subject to “strict compliance” – a legal term that requires the campaigns follow the letter of the law, not just the spirit of the law. In practical terms, that means referendum can be thrown out for something as innocuous as using the wrong margin size or font size.

Finally, if the referenda are ultimately successful in qualifying for the ballot, lawmakers have one last move at their disposal to kill the effort.

Sen. Debbie Lesko
Sen. Debbie Lesko (R-Peoria)

Republican Sen. Debbie Lesko of Peoria, who sponsored the Empowerment Scholarship Accounts bill, noted that if the campaign against her legislation actually gets enough valid signatures it needs to make the ballot, the Legislature can just repeal and replace the law.

It wouldn’t be the first time lawmakers have employed the strategy. In 2014, after voters had gathered enough signatures to halt the elections omnibus bill lawmakers had approved the previous year, the Legislature simply repealed the law.

And in 2015, after the threat of a referendum had passed, lawmakers re-approved many of the controversial provisions in the law.

Katie Campbell contributed to this report

Senate committee passes bill to add restrictions to recall elections

petitions

A Senate panel voted Thursday to erect some new hurdles in the path of those seeking to recall state and local elected officials.

SB 1434 crafted by Sen. David Gowan, R-Sierra Vista, adds new requirements for paid circulators and those from other states to first have to register with the secretary of state. This mirrors changes the Republican-controlled Legislature already have imposed on those proposing new laws through initiatives.

The legislation also spells out in detail exactly how petitions must be formatted with language allowing legal challenges if the forms are not in “strict compliance” with those standards.

David Gowan
David Gowan

Potentially most significant is that it permits anyone challenging the recall to demand that paid circulators show up in court. And if that person does not appear, it requires judges to disqualify all the signatures that person collected, regardless of whether there is other evidence to show that the signature is valid and the signer does support the recall.

That provision, too, already exists for initiative petitions.

Another bill approved Thursday by the Judiciary Committee permits, but does not require, county election officials to reach out to voters who forget to sign the envelopes in which they return their early ballots.

This version of SB 1032 is less severe than the original proposal by Sen. Michelle Ugenti-Rita, R-Scottsdale, which would have banned the practice entirely.

But Sen. Martin Quezada, D-Glendale, said that still leaves the door open for inconsistent practices across the state should some county recorders decide that they don’t want to do that. And that effectively would nullify any ballot within an unsigned envelope.

Both measures drew strong opposition from the League of Women Voters.

Rivko Knox, the organization’s lobbyist, told lawmakers that her members oppose all efforts to require “strict compliance” with election laws, where technical violations can disqualify petition drives.

Rivko Knox
Rivko Knox

“The Arizona Constitution speaks favorably and strongly in support of direct democracy, as does the League,” she said. “And although direct democracy remains in our laws, so many barriers have been placed before it that it may shortly become a part of history and unusable by Arizona citizens.”

Knox also said there is “some irony” in the fact that lawmakers have not extended that requirement for strict compliance to their own nominating petitions or those of other elected officials.

“Why should the latter not be subject to all the hoops that a recall petition would be subject to if this bill is passed?” she asked. “Does this Legislature believe those circulating nominating petitions are somehow more trustworthy than those circulating recall petitions?”

The issue of early ballots and unsigned envelopes addresses a different problem.

Election officials in each of the 15 counties had their own policies of whether to try to contact voters when ballots showed up without the legally required signature. There also were differing practices about how much time voters had to come in and make the fix, with some setting the deadline at 7 p.m. on Election Day and others giving voters up to five days after.

Secretary of State Katie Hobbs, responding to a lawsuit filed by the Navajo Nation, agreed to a uniform standard of five days.

Attorney General Mark Brnovich vetoed that agreement, saying Hobbs lacked the authority to make such a change. That sent the issue to the Legislature to resolve, which is what SB 1032 is designed to do.

But that language allowing and not requiring election officials to seek out voters who forgot to sign their envelopes annoyed Randy Perez, the democracy director for Living United for Change in Arizona.

He told lawmakers there were thousands of ballots that were not counted last election. And Perez said this bill, along with other moves by the Republican-dominated Legislature, has an ulterior motive.

“We know these bills are not in a silo,” he said.

“This Legislature has a horrible, horrible partisan history of attacking the right to vote,” Perez continued. And he said LUCHA believes that Republicans are pushing this now because they fear they will lose their legislative majorities in the 2020 election.

“We know that we are only one seat away from power in the House and two seats away from power in the Senate,” Perez said, referring to the 31-29 GOP edge in the House and 17-13 margin in the Senate. “And we know that bills like this will not be able to move forward in the future.”

Both measures now need full Senate approval.

Supreme Court upholds lower-court ruling on ‘strict compliance’

The Arizona Supreme Court heard oral arguments Feb. 28, 2017, in a case in which Tucson's ordinance requiring the city's police department to destroy seized guns has come under attack by the Arizona Attorney General. From left to right are justices Andrew Gould, Ann Scott Timmer, John Pelander, Scott Bales, Robert Brutinel, Clint Bolick and John Lopez.
The Arizona Supreme Court heard oral arguments Feb. 28, 2017, in a case in which Tucson’s ordinance requiring the city’s police department to destroy seized guns has come under attack by the Arizona Attorney General. From left to right are justices Andrew Gould, Ann Scott Timmer, John Pelander, Scott Bales, Robert Brutinel, Clint Bolick and John Lopez.

A new law making it harder for voters to put their own measures on the ballot will remain on the books, at least for now.

Without comment, the Arizona Supreme Court on Tuesday left intact a lower court ruling which denied challengers the right to contest the 2017 law which requires that all initiatives must be in “strict compliance” with every election law before it can go before voters. That law pushed through by the Republican-controlled Legislature overruled prior court decisions which had said that “substantial compliance” is sufficient to survive a legal challenge.

But in tossing the case, the justices did not rule on the merits of the law or the challenge.

Instead, they effectively kicked the legal can down the road, agreeing with the Court of Appeals that the case isn’t legally “ripe” to decide. That’s because there is no pending initiative in danger of being kicked off the ballot for failing to comply with the new stricter standard.

The decision disappointed attorney Roopali Desai who represents various groups who charge that the law is unconstitutional. She contends the new requirement itself creates a new — and illegal — hurdle to future initiatives because it will force organizers to spend more money to ensure that each aspect of petitions, no matter how technical, meets the strict compliance standard.

“The injury (to initiative backers) is occurring before you get sued,” she said.

Central to the issue is the state constitutional right of voters to create their own laws.

Any group that gets the signatures equal to 10 percent of the people in the last gubernatorial election can put a statutory change on the ballot. For 2020, that figure is 237,465.

Constitutional changes have a 15 percent requirement, or 356,467.

Some lawmakers, largely on the Republican side of the aisle, have complained about the initiative process. They contend it has led to special interest groups proposing measures that affect the state and its budget.

Proponents counter they go directly to voters when legislators won’t act. Recent examples range from banning gestational crates for pigs and outlawing leghold traps on state land to allowing patients to use marijuana for medical reasons.

But what prompted the 2017 law was the approval a year earlier, by a 3-2 margin, of an increase in the state minimum wage. That occurred over the objections of business interests.

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

That was designed to overrule prior court rulings which interpreted the Arizona Constitution to say that initiative organizers need be only in substantial compliance with election laws. That meant that technical flaws, ranging from the wrong type size or page margins to voters signing with initials instead of their full names, did not automatically void petitions.

Desai called the change in law a “legislative power grab.”

She argued, unsuccessfully, that it violates constitutional rights if initiative organizers have to wait until they were in danger of having a measure thrown off the ballot before they can contest the law they contend interferes with their ability to put measure on the ballot.

Desai also said the issue is not academic for her clients because each has been involved in putting measures on the ballot in the past. They include the Animal Defense League of Arizona, Planned Parenthood Advocates of Arizona, the Arizona Advocacy Network, and Friends of ASBA, the initials which stand for Arizona School Boards Association.

Trial on citizen initiative restrictions gets underway

The consultant who has helped with most of the recent initiative drives testified Wednesday a new state law will impair the ability of Arizonans to craft their own laws.

Andrew Chavez told Maricopa County Superior Court Judge Sherry Stephens that it is not unusual for petitions to be challenged for technical errors. He said this could be something as simple as a signer failing to insert a full city and state address to even putting the date of the signature outside the small box where it is supposed to go.

Andrew Chavez
Andrew Chavez

Chavez said until now that trial judges have generally resolved those disputes in favor of allowing the measure to go on the ballot. That’s because the Arizona Supreme Court has concluded that initiative petitions to propose new laws need be only in “substantial compliance” with all election requirements.

But Chavez, whose AZ Petition Partners provides paid circulators, said the mandate approved by the Republican-controlled legislature in HB 2244 will require “strict compliance.” And that, he said, likely will force judges to disqualify petitions with these kinds of technical errors.

What makes that important, he told Stephens, is that will require circulators to gather far more signatures than needed as a “cushion.” And the more signatures a petition needs, the more expensive it will be.

How much?

Chavez said he charged $700,000 to collect signatures last year — under existing law — for a group that put a measure on the ballot to legalize marijuana for recreational use. He said just the change to strict compliance will increase that price tag by up to 30 percent, money he said that many non-profit and volunteer groups do not have.

Stephens
Sherry Stephens

His testimony is significant because foes of the new law hope it will convince Stephens that lawmakers acted illegally in changing the standard.

Part of the case being presented by their attorneys goes to the legal question of whether the legislature has the right to change the standard.

But they cannot make that case unless they can first prove to Stephens that they have standing to sue because they will be harmed if the change is allowed to take effect as scheduled on Aug. 9. The testimony from Chavez was meant to provide the legal basis for that.

It was not just Chavez who contends the new law will make future initiative drives more difficult.

sandy-bahr-mug
Sandy Bahr

Sandy Bahr, director of the Grand Canyon Chapter of the Sierra Club, said she already is working with other groups to put two measures on the 2018 or 2020 ballots.

One would make it easier for people to register to vote. The other would outlaw so-called “trophy hunting” of wild animals.

“This would be very harmful to a fundamental right that we have to initiate law,” she said.

“It will make it more difficult, it will make it more expensive.” Bahr said.

She said more initiatives will likely fail.

The Arizona Constitution gives voters the right to propose their own laws. More to the point, attorney Roopali Desai, who is representing challengers to the new law, told Stephens that right exists “independently of the legislature.”

roopali-desai-web
Roopali Desai

“This provision is in the constitution for a very important reason,” she said. “It is in the constitution because the people of Arizona believe their right to legislate is co-equal to that of the legislature, and not subordinate to that of the legislature. And that is the premise our entire case is built on.”

What that means, she said, is that right “should be leniently applied with respect to initiative efforts that are undertaken by the people.”

Desai cited a series of changes in state law that exist because voters approved at the ballot after the legislature refused to act. These include creation of an optional system of public financing for statewide and legislative candidates, having an independent commission draw legislative and congressional districts rather than politicians, and creation of a statewide minimum wage.

She also said that women got the vote in Arizona in 1912 — before it was required by a change in the U.S. Constitution — because of a voter initiative.

Desai said they had to go to the ballot because they were “unpopular at the legislature.” And she pointed out to Stephens that the Voter Protection Act, approved at the ballot in 1998, specifically precludes lawmakers from repealing or making significant changes to the laws voters have enacted.

“It is their agitation with this significant right where they cannot come in and amend or repeal laws that are passed by the people that drove them to pass HB 2224 that essentially limits the right of initiative by making it more difficult to achieve ballot access,” she said.

Attorney David Cantelme, representing GOP legislative leaders defending the law, told Stephens that the claims of harm are exaggerated.

He said all petition organizers and circulators have to do is follow the Arizona laws which spell out what is required to put a measure on the ballot. And Cantelme noted that HB 2244 says petition drives that use the form crafted by the secretary of state’s office are presumed to be valid.

But he also argued that the plaintiffs in this case, including Bahr, have no standing to sue because they cannot show they have been harmed by the new law, as nothing they have proposed for the ballot has been kicked off because of the strict compliance standard.

Desai countered that all the plaintiffs not only have been involved in prior initiative drives but also are weighing future ones, giving them a legitimate — and legal — interest in the new requirement.

Bahr said her organization is working with other challengers like the Arizona Advocacy Network and the Animal Defense League of Arizona. Others challenging the law include the Friends of the Arizona School Boards Association, Planned Parenthood Advocates of Arizona, and Matthew Madonna who was regional president of the American Cancer Society, which was behind a successful ballot effort to ban smoking in public places.

Whatever Stephens rules is unlikely to be the last word: Whichever side loses is expected to seek Arizona Supreme Court review.