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PHOENIX — The state Department of Revenue wants a judge to quash efforts by business interests and some Republican legislators to keep a new tax for education funding from taking effect.

That puts the department somewhat at odds with Gov. Doug Ducey, who had urged voters, unsuccessfully, to defeat the measure.

An attorney hired by the state on behalf of the Revenue Department, Brian Bergin, is telling a judge there is no legal justification to bar enforcement of the new 3.5% income tax surcharge on the wealthy approved by voters in Proposition 208.

Arizona officials have certified Joe Biden’s narrow victory over President Donald Trump in the state. Democratic Secretary of State Katie Hobbs and Republican Gov. Doug Ducey stood up for the integrity of the election even as lawyers for Trump were across town Monday arguing without evidence to nine Republican lawmakers that the election was marred by fraud.

If nothing else, Bergin said, there’s no rush to deal with it because the earliest people would actually owe the tax is April of 2022.

Bergin also said an injunction is inappropriate because the challengers have not demonstrated they ultimately will win the case.

But the most crucial point, according to Bergin, is that an order precluding the state from collecting the tax would be illegal.

He points out that state law specifically prohibits courts from enjoining the collection of any tax.

The reason, Bergin said, is that to allow a court to block collection of a disputed tax would undermine the government’s ability to function. And he said if a tax is later determined to be illegal, there is a simple remedy: Those who paid it can seek a refund.

Beyond that, Bergin said the judge needs to think long and hard before undermining the voter-approved tax.

“The Arizona Supreme Court has long recognized Arizona’s strong public policy favoring initiatives,” he wrote. And Bergin said that under the Arizona Constitution, the power of people to create their own laws is equal to that of elected legislators.

“Courts must exercise restraint before imposing unreasonable restrictions on the people’s legislative authority,” he told Maricopa County Superior Court Judge John Hannah.

“Additionally, every initiative is presumed to be constitutional.”

That, Begin wrote, is true here.

“Proposition 208 apparently reflects the voters’ belief that the state’s educational system is underfunded and requires additional permanent funding that the Legislature has been unable, or unwilling, to provide,” he said.

“The people have spoken in approving Proposition 208,” Bergin continued. “Public policy heavily weighs against imposing injunctive relief.”

Bergin’s position as attorney of record for the state and its Department of Revenue puts him — and his clients — in an unusual position.

Prior to the November election, the governor decried trying to raise $940 million for K-12 education — the estimate provided by Prop. 208 supporters — on the backs of the top 4% of Arizona earners.

“That’s a whopping amount, especially considering that our economy is recovering from recession and high unemployment,” Ducey wrote in a statement of opposition.

It wasn’t just Ducey among state officials opposed to the measure.

Fellow Republican Kimberly Yee, the state treasurer, appeared in TV commercials asking voters to reject the measure.

By contrast, state schools chief Kathy Hoffman, a Democrat, came out in support.

Bergin makes no reference to all of that in his legal arguments.

Instead, he is telling Hannah that the law is not on the side of those who want to block the tax.

The underlying lawsuit, filed by Republican lawmakers and certain business interests, claims voters have no right to levy a tax on their own, saying that power is reserved for elected legislators.

And the challengers say even if they do — a point they are not conceding — voters are subject to the same constitutional requirement that applies to the Legislature when it wants to raise taxes: It needs a two-thirds vote to take effect.

They are separately trying to convince Hannah that the initiative imposing the new levy, which is in the form of a statutory change, cannot trump a constitutional limit on the amount of funds that can be raised for K-12 education.

They want Hannah to immediately bar collection of the tax pending a full-blown trial on the merits.

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