Strict compliance for citizen-initiated ballot initiatives to remain for now

In a new ruling Tuesday, the state Court of Appeals did not dispute the contention of challengers that a 2017 statute requiring strict compliance with all election laws could keep some individuals and groups from writing their own laws and asking voters to approve them.

But Judge James Beene, writing for the three-judge panel, said they cannot rule on the issue because no one is actually being penalized — and no initiative is at risk of being thrown off the ballot — for failing to comply with the new standards. And that, in legal parlance, means the case is not yet “ripe” for a decision.

Attorney Roopali Desai said she has not had a chance to consult with her clients to decide whether to seek Supreme Court review. But she told Capitol Media Services that the ruling leaves a whole host of questions about exactly when those who believe their constitutional rights are being violated can seek judicial intervention.

At the heart of the issue is the right of voters to create their own laws.

The Arizona Constitution spells out that any group which gets the signatures equal to 10 percent of the people who voted in the last gubernatorial election can put a statutory change on the ballot. This year that figure is 150,642.

Constitutional changes have a 15 percent requirement, or 225,963.

Many lawmakers have complained about the initiative process, saying it has led to special interest groups proposing measures that affect the state and its budget.

But proponents contend they go directly to voters when legislators won’t act. Recent examples range from banning gestation crates for pigs and outlawing leghold traps on state land to allowing patients to use marijuana for medical reasons and an increase in the state minimum wage.

It was that last measure, approved by voters in 2016 by a 3-2 margin over the objection of the business community, that led some GOP lawmakers to seek curbs.

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

Up until last year, the court has interpreted the Arizona Constitution to say that initiative organizers need only be in “substantial compliance” with election laws. That means technical flaws, ranging from the wrong type size to voters signing with initials instead of their full names, did not automatically void petitions.

That change in law is significant.

If the strict compliance standard had been in effect in 2012, for example, voters would never have been able to decide whether to make permanent a 1-cent increase in the state sales tax. That’s because there were wording differences between the electronic and printed versions of the initiative filed with the secretary of state.

But the courts said those were not meaningful, allowing a vote. The measure failed anyway.

In a hearing last year, a series of witnesses told Maricopa County Superior Court Judge Sherry Stephens that a strict compliance standard will make it easier for foes to disqualify signatures — and in some cases, entire initiative sheets — for technical violations. The result, they said, will be they need to get even more signatures as a cushion, raising the expense of putting measures on the ballot.

But Stephens said she can’t consider the issue as she had no actual case in front of her. It was that decision the appellate court upheld on Tuesday.

“No initiative proponent has taken any concrete, affirmative steps such as filing an application with the secretary of state or obtaining a serial number with that office for the purpose of circulating petitions to place an initiative measure on the 2018 ballot,” Beene wrote.

Nor were the appellate judges persuaded by the argument that the strict compliance standard will increase the cost of future initiative campaigns, pointing out that those who filed suit are not circulating petitions, much less have they incurred those costs. That, Beene said, makes such claims “speculative.”

Desai said the ruling provides no clear guidance on when a case becomes legally “ripe.”

She said that could be as early as when a group starts circulating an initiative petition and has to incur additional expenses. Conversely, a group could have to wait to sue until after the signatures were gathered and turned in only to have the Secretary of State’s Office or a court void them for failing to comply with all the technical requirements.

Desai said that at the very least, that question needs to be cleared up.