Judge hears arguments that new law curbs Arizonans' initiative rights

PHOENIX — A consultant who has helped with many recent initiative drives testified Wednesday a new state law will impair the ability of Arizonans to craft their own laws.

Andrew Chavez told Maricopa County Superior Court Judge Sherry Stephens that it is not unusual for petitions to be challenged for technical errors. The errors could be something as simple as a signer failing to insert a full city and state address, to putting the date of the signature outside the small box where it is supposed to go, he said.

Until now, Chavez said, trial judges have generally resolved those disputes in favor of allowing the measure to go on the ballot. That’s because the Arizona Supreme Court says initiative petitions to propose new laws need be only in “substantial compliance” with all election requirements.

But Chavez, whose AZ Petition Partners provides paid circulators, said the mandate approved by the Republican-controlled Legislature in HB 2244 will require “strict compliance.” That likely will force judges to disqualify petitions with simple technical errors, he said.

He told Stephens that will require circulators to gather far more signatures than needed, as a “cushion.” And the more signatures a petition needs, the more expensive it will be.

Chavez said he charged $700,000 to collect signatures last year — under existing law — for a group that put a measure on the ballot to legalize marijuana for recreational use. He said just the change to strict compliance will increase that price tag by up to 30 percent, money he said many nonprofit and volunteer groups do not have.

His testimony is significant because foes of the new law — set to take effect Aug. 9 — hope it will convince Stephens that lawmakers acted illegally in changing the standard.

Part of the case being presented by their attorneys goes to the legal question of whether the Legislature has the right to change the standard.

But they cannot make that case unless they can first prove to Stephens that they have standing to sue because they will be harmed if the change is allowed to take effect as scheduled. The testimony from Chavez provides the legal basis for that.

It was not just Chavez who contends the new law will make future initiative drives more difficult.

Sandy Bahr, director of the Grand Canyon Chapter of the Sierra Club, said she already is working with other groups to put two measures on the 2018 or 2020 ballots. One would make it easier for people to register to vote. The other would outlaw so-called “trophy hunting” of wild animals.

“This would be very harmful to a fundamental right that we have to initiate law,” she said of the new law. “It will make it more difficult, it will make it more expensive. It’s likely to mean that more initiatives will fail.”

The Arizona Constitution gives voters the right to propose their own laws. That right exists “independently of the Legislature,” attorney Roopali Desai, who is representing challengers to the new law, told Stephens.

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“This provision is in the constitution for a very important reason,” she said.

“It is in the constitution because the people of Arizona believe their right to legislate is co-equal to that of the Legislature, and not subordinate to that of the Legislature,” Desai said. “And that is the premise our entire case is built on.”

She said that right “should be leniently applied with respect to initiative efforts that are undertaken by the people.”

Desai cited a series of changes in state law that exist because voters approved them at the ballot after the Legislature refused to act. These include creation of an optional system of public financing for statewide and legislative candidates, having an independent commission rather than politicians draw legislative and congressional districts, and creation of a statewide minimum wage.

She also noted that women got the vote in Arizona in 1912 — before it was required by a change in the U.S. Constitution — because of a voter initiative.

Desai also pointed out that the Voter Protection Act, approved at the ballot in 1998, specifically precludes lawmakers from repealing or making significant changes to the laws voters have enacted.

“It is their agitation with this significant right where they cannot come in and amend or repeal laws that are passed by the people that drove them to pass HB 2224 that essentially limits the right of initiative by making it more difficult to achieve ballot access,” she said.

Attorney David Cantelme, representing GOP legislative leaders defending the law, told Stephens that the claims of harm are exaggerated.

He said all petition organizers and circulators have to do is follow the Arizona laws which spell out what is required to put a measure on the ballot. And Cantelme noted that HB 2244 says petition drives that use the form written by the Secretary of State’s Office are presumed to be valid.

But he also argued that the plaintiffs, including Bahr, have no standing to sue because they cannot show they have been harmed by the new law, as nothing they have proposed for the ballot has been kicked off because of the strict compliance standard.

Desai countered that all the plaintiffs not only have been involved in prior initiative drives but also are weighing future ones, giving them a legitimate interest.

Bahr said her organization is working with other challengers including the Arizona Advocacy Network and the Animal Defense League of Arizona. Others challenging the law include the Friends of the Arizona School Boards Association, Planned Parenthood Advocates of Arizona, and Matthew Madonna, who was regional president of the American Cancer Society when it launched a successful ballot effort to ban smoking in public places.

Whatever Stephens rules is unlikely to be the last word: Whichever side loses is expected to seek Arizona Supreme Court review.