Will the Arizona Supreme Court OK leaders' scheme to weaken our rights?

Opinion: The Arizona Supreme Court will decide whether Gov. Doug Ducey and the Legislature will get away with trying to weaken our right to make laws at the ballot box.

Laurie Roberts
The Republic | azcentral.com
The Invest In Education campaign turned in 270,000 signatures they've gathered to get their education funding initiative on the ballot at the state capitol in Phoenix on July 5, 2018.

Last year, Gov. Doug Ducey and the Arizona Legislature decided to make it more difficult for voters to exercise their constitutional right to make laws at the ballot box.

In the next few days, the Arizona Supreme Court will decide whether to allow them to get away with it.

Come back with me now to 2017. The Arizona Chamber of Commerce and Industry was still fuming over voters’ decision the previous year to raise the minimum wage via citizen initiative.

So chamber leaders asked their pals at the Legislature to pass a series of laws making it more difficult in the future for voters to pass laws via initiative – first by making it harder to gather the signatures needed to put a proposal on the ballot and then by making it easier for judges to toss them off the ballot.

Reason for new law is obvious

Among those changes: a new law requiring that initiatives strictly comply with state laws governing elections rather than the lower “substantial compliance” standard used by judges since the 1930s.

Curiously, our leaders didn't hold themselves to that same higher standard. Didn't require strict compliance with the law as they circulate nominating petitions to run for office. The change applied only to initiatives. 

The reason for the change was obvious: to make it as tough as possible for voters to go around our leaders and pass laws they and their pals don’t like.

And so they passed a new law mandating that judges disqualify initiative petitions signed by hundreds of thousands of voters when there are technical flaws on the petitions, like the wrong size of font or a too-narrow margin – or a prematurely checked box.

The sort of technicalities that judges always have overlooked, in deference to our constitutional right to make laws by initiative.

InvestinEd and Clean Energy initiatives at risk?

Now, the chamber,  Arizona Public Service and a trio of dark money groups are hoping to use the new “strict compliance” requirement to keep several initiatives off the November ballot.

A chamber-funded group, Arizonans for Great Schools and a Strong Economy, has sued to block InvestinEd from the ballot. The chamber contends, among other things, that the proposal to raise income taxes should be thrown out due to check marks.

ROBB:Invest in Ed asks judge to ignore what it wrote

State law requires petition circulators to check a box, indicating whether they are getting paid or working as volunteers. But attorney Kory Langhofer told the judge the boxes already had been checked when InvestinEd petitions were given to circulators and thus the petitions didn’t strictly comply with the law.

He didn’t argue that the boxes were checked inaccurately or that petitions signers had been misled – only that the boxes were checked prematurely and thus the signatures of 270,000 Arizonans should be tossed into the trash.

So, is it constitutional or not?

Maricopa County Superior Court Judge James Smith didn’t buy that (or Langhofer’s other, stronger arguments).

Last week, he struck down the new strict compliance mandate, saying it “unconstitutionally violates Arizona’s separation of powers doctrine and infringes on the people’s reserved power to legislate via initiative.”

“Our Supreme Court for decades has pointed to our Constitution as the basis for substantial, not strict, compliance regarding initiatives,” Smith wrote. “Legislation cannot fundamentally change that right reserved to the people.”  

Since then, two other judges have ruled the opposite way, declaring that the new strict compliance law is constitutional.

Maricopa County Superior Court Judge Teresa Sanders, in a ruling on the Outlaw Dirty Money initiative, found that the strict compliance law "does not unreasonably hinder" our rights.

Maricopa County Superior Court Judge Daniel Kiley who is handling APS’s lawsuit trying to bounce the Clean Energy for a Healthy Arizona initiative off the ballot, agreed.

“The Court sees no basis for the (Clean Energy) Committee’s assertion that such a (strict compliance) standard, applied by other courts in other jurisdictions with similar constitutional provisions, would impose an intolerable burden on the right to initiative in Arizona,” he wrote.

No basis, apparently, to suspect that our leaders are scheming to weaken our constitutional right to make laws they don't like.

The fact that they suddenly toughened a legal standard used for 80 years? This, just a few months after voters approving an initiative raising the minimum wage?

Mere coincidence, I’m sure.

Reach Roberts at laurie.roberts@arizonarepublic.com.

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