PHOENIX — A federal judge questioned how Arizona can argue that allowing initiatives to gather signatures online could lead to fraud when state lawmakers allow themselves and other candidates to use the same process.
Judge Dominic Lanza said he could understand claims by Assistant Attorney General Drew Ensign that it would be improper for him to create an online signature-gathering system from scratch.
“But E-Qual exists,” the judge said at a hearing Tuesday. “The Legislature created it. It’s hard for me in some way to accept the idea that E-Qual is this unmitigated disaster of fraud when it’s something that the state of Arizona has chosen to adopt for use in certain types of electoral circumstances.”
The issue is critical because two groups that are hoping to qualify for the November ballot are arguing to Lanza that the COVID-19 outbreak and the edicts to socially distance and to stay at home have placed an unreasonable, unconstitutional burden on efforts to gather the needed signatures.
The two groups’ attorney, Jim Barton, wants the judge to order that, at least for this year, they can finish their petition gathering online using the E-Qual system.
“We don’t view it as an unmitigated disaster,” Ensign told the judge.
But he said that the decision by lawmakers to let candidates get signatures online does not mean they are convinced it’s as fraud-proof as it needs to be. Ensign said lawmakers rolled out the E-Qual system “on a trial, basically rolling it out sequentially to find out if it might work.”
Political candidates could start using the system eight years ago to get up to half their signatures; that 50% cap was removed for the 2016 election.
Ensign also argued there’s nothing wrong with lawmakers coming up with one system of gathering signatures for themselves and another one to put issues on the ballot.
“It’s a very common feature of Arizona law that we have greater fraud prevention requirements for petition initiatives than we do have for nominating petitions,” he said.
Hanging in the balance is the future of several ballot proposals where groups started gathering signatures in person before the COVID-19 outbreak.
Barton stressed that he is not asking Lanza to make E-Qual available forever.
“We’re just saying that during the period when it is literally dangerous to do in-person signature gathering to allow (use of) this electronic system,” he said.
Ensign argued that there are other ways for those proposing initiatives to still get the signatures they need by July 2, including single-use signature sheets, scheduling petition signings in advance or social distancing.
“I understand the argument,” Lanza told him. “But are you seriously arguing that the current conditions of the pandemic are not interfering with signature gathering under the traditional tools?”
Lanza specifically pointed out that Tuesday’s hearing was telephonic because of the pandemic, with the judge and attorneys remaining in their offices and calling in.
Ensign did not back off. He said the groups involved could use this time when they can’t approach people with petitions to instead communicate with voters and generate commitments to sign the petitions in person “when this pandemic has passed.”
There are some deeper legal issues.
One is that Barton is asking the judge to allow this one-time exception from Arizona laws about getting in-person signatures.
But Lanza pointed out there also are similar requirements in the Arizona Constitution. Barton said the judge can allow the use of the E-Qual system because it “substantially complies” with what the constitution requires.
The other is Ensign’s claim this isn’t a situation where state law created the burden on initiative circulators.
The judge said he hopes to rule by the end of the week.
