PHOENIX – A key aide to Attorney General Mark Brnovich altered language of the ballot description of Proposition 127 that the state's top elections officer called "eyebrow raising'' and the lawyer for initiative organizers said is designed to help Arizona Public Service convince voters to reject it.
Brunn Roysden took the explanation which state Elections Director Eric Spencer crafted on the renewable energy initiative and added the words that the change, if approved, would come "irrespective of cost to consumers.'' That's precisely the argument APS has been making against the measure.
And within days, a picture of the ballot with that new language showed up on an APS-financed TV ad.
A spokesman for Brnovich's office said that Roysden, acting chief of the agency's civil division, was within his legal rights to alter the description. And he said the explanation that came out of Spencer's office came up short.
But Spencer, who said his original explanation was what Arizona law requires voters to be told, called the new verbiage added by Roysden "eyebrow raising'' and suggested it comes with both legal and political risks.
The fight is over a ballot measure which would amend the Arizona Constitution to say that private utility companies must produce at least 50 percent of their electricity by 2030 from "renewable'' sources. By contrast, the Arizona Corporation Commission, which has purview over those same companies, has a mandate of just 12 percent by 2020 and 15 percent by 2025.
APS, the state's largest utility, has taken the lead in fighting the measure, first with an unsuccessful lawsuit to keep it from the November ballot and now with an expensive and extensive campaign under the banner of Arizonans for Affordable Electricity to convince voters that the mandate is a bad idea. And the central argument is the claim – disputed by Prop 127 organizers – that the requirement will lead to sharply higher rates for customers.
By law, the Secretary of State's Office crafts the wording that appears on the actual ballots sent to voters.
Spencer's proposed language said the initiative would require utilities to hit that 50 percent requirement by 2030, noting that is a 317 percent boost from the current 2020 mandate. It also mentions a requirement for utilities to boost what they get from "distributed generation,'' essentially what they have to purchase from customers who have installed their own rooftop solar panels.
Roysden, whose office has to approve the final ballot language, struck some of what Spencer crafted and added a couple of points. One is that nuclear generation does not count as renewable.
But the language that has alarmed attorney Jim Barton and got the attention of Spencer spells out on the ballot that approval of Proposition 127 would impose the mandate "irrespective of cost to consumers.''
That's precisely the argument being made by APS. But Ryan Anderson, a spokesman for the Attorney General's Office, said that does not make it any less true.
He said that the current 15 percent mandate, having been enacted by utility regulators, can be changed if they conclude that reaching the goal would have a serious detrimental effect on ratepayers.
By contrast, Anderson said, Proposition 127 would put the mandate into the Arizona Constitution – and beyond the reach of the regulators. The only way to change it, he said, would be to put the issue back on the ballot.
The new description, which the Secretary of State's Office is obliged to use, got the attention of Spencer who expressed his surprise in an email to Roysden obtained by Capitol Media Services.
"The Prop 127 language is certainly eyebrow-raising because it cites information exogenous to the ballot measure itself,'' Spencer wrote, using a term to mean that the words in Roysden's explanation are not taken from the ballot language itself but from outside factors.
"But, I'm sure you've calculated the legal and political risks of adding that,'' Spencer added.
Anderson defended the added language, saying that the initiative, if approved by voters, will increase the amount of renewable energy utilities have to generate.
"That was done irrespective of the cost to consumers,'' he said.
Anderson said the fact that Barton did not sue to strip that language is proof that even initiative supporters acknowledge the added words are accurate. But Barton said that's not true.
Barton said he got a copy of the ballot description the day before the ballots were to be sent to the printer. At that point, he said, it would be virtually impossible to convince a judge to order printing delayed while the issue was litigated.
And Barton said the law in Arizona works against those who would challenge a ballot description.
"The case law on it says it has to be either arbitrary or undeniably inaccurate,'' Barton said. "It's a very, very high standard to be able to get ballot language struck down.''
And there's something else that bothers Barton.
Within days of Roysden adding the language to the official ballot description, APS had a TV commercial on the air with a picture of the revised wording, even highlighting the new "irrespective of costs to consumers'' language.
"Collusion is a word that's almost lost meaning,'' Barton responded.
"I'm very suspicious of the use of that language in a commercial so soon after the language was released,'' he continued. "I think it's suspicious.''
Anderson denied that Roysden or anyone in the office got the added language from anyone at APS. And he said the new wording was not shared with the utility until it became public.