Any time the Legislature considers changing the way our initiative process works in Arizona, you can be pretty sure of one thing.
The change will take power from us and give power to them.
Thatβs what youβll find if you crack open the thick tome that should have arrived in your mailbox, the Arizona 2022 General Election Publicity Pamphlet. Skip past the judgesβ reviews and youβll start reading about the ballot issues.
Propositions 128 and 129 are the first ones youβll get to β the first of 10! Another one, Prop. 132, also deals with initiatives. When the ballots are in our hands, most of us will start considering the propositions after the races that we feel strongly about, right about when weβre starting to feel uncertain.
No need to feel uncertain. You can rely on a simple principle: Protect your political power.
Since the Voter Protection Act passed in 1998, citizen initiatives have been an annoyance to many legislators. Initiatives are, by design, a way for us to go around the political structure at the state Capitol, where money and insider connections hold sway.
The power to pursue a citizen initiative is so fundamental in Arizona that it came before the establishment of the Legislature in the state Constitution. But the Voter Protection Act took power from the Legislature, who previously messed with initiatives that citizens had passed.
When we used the initiative process to take redistricting power from the Legislature, create the clean-elections system, pass an inflation-adjusted statewide minimum wage and and legalize marijuana, it pissed them off. The GOP-controlled Legislature didnβt want any of these things.
Sen. Vince Leach, the outgoing Republican from SaddleBrooke, has taken a special interest in going after citizen-initiative powers. He is, unsurprisingly, the sponsor of the resolution that became Prop. 128.
The ballot issue is deceptively simple: It says that the Legislature may amend by majority vote any initiative that becomes law if part of that initiative is ruled illegal or unconstitutional by the Arizona or U.S. supreme court. Leach and some colleagues discussed it during the 2021 legislative session as a way to simplify fixing parts of an initiative that are struck down by the courts.
By text message Tuesday, Leach explained the measure this way: βGoing forward the Leg (Legislature) could amend/supersede, with a simple majority, any new or existing initiative language found to have illegal/unconstitutional provisions by AZ or US Supreme Court.β
Opponents argue, and the plain wording of the proposition shows, that itβs not just that. The proposition appears to let the Legislature make any changes it wants to in a citizen-passed law if any part of it is found unconstitutional or illegal by either of those two courts.
One of the people making this point in the arguments section of the pamphlet is Carlos Figueroa of Tucson.
βUnder Proposition 128, politicians would be able to undo or entirely rewrite a ballot initiative that had been previously approved by voters, if the Supreme Court interprets any small part of the law as unconstitutional,β wrote Figueroa, who identified himself as βhead tortilleroβ at Maiz Tucson, where they make tortillas from heirloom varieties of corn.
Itβs not just the tortilla-makers who have figured this out. The League of Women Voters also urges a no vote, as does a group called Mormon Women for Ethical Government and LUCHA, among others.
If you consider the history of the Citizens Clean Elections Act, the proposition doesnβt make sense from the practical perspective either. Voters passed the act in 1998, but in 2011 the U.S. Supreme Court threw out one of its key provisions β a system for providing matching funds for candidates.
The Citizens Clean Election Commission went on working anyway, but abandoned the matching-funds system. In 2012, more than three-quarters of the Legislature voted to repeal the parts of the act found unconstitutional.
Jim Barton, the attorney who defended the matching-funds system in court, noted that the history of clean elections shows the existing system works, when the Legislature actually wants to clean up laws that have been found unconstitutional. But of course it didnβt do so in the case of the abortion law that just came back into effect, he noted.
Prop. 208 βdoes make it easier for the Legislature to clean up the books, which is something they donβt care about,β Barton said.
Propositions 129 and 132 also may seem deceptively simple and attractive. The first would require that any initiative be only about one subject and that the subject be in the title of the measure.
You can imagine where this is going: Every initiative passed will be challenged on the idea that it contains too many subjects or that its title is faulty. This just opens another avenue for going to the courts and overturning the will of the people.
Prop. 132 would require that any tax increase passed by initiative reach the 60% threshold in order to become law. This is apparently a response to Prop. 208, the 2020 Invest in Education initiative to raise taxes on families making over $500,000 per year. The initiative got 51.7% of the vote, but it didnβt become law because it was struck down in the courts.
My evaluation of this and the other propositions having to do with the initiative power is simple. Would it restrict the votersβ power? Yes, it would. It would in all three of these cases, which means voters should have an easy decision.
