Critical distinctions for voter-approved ballot measures
PHOENIX – 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 each and 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 leghold 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.
She said the Legislature, in voting to impose a “strict compliance’’ standard, is seeking to override prior decisions of the Supreme Court which said “substantial compliance’’ with election laws is sufficient when voters propose their own laws. Desai said that is a violation of the doctrine of separation of powers and the justices should take this opportunity to slap it down.
“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 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.