Proposition 208 narrowly passed with 51.7% of the vote. It created a new tax that will affect individuals earning over $250,000, or couples earning over $500,000 and some small business owners. The revenues are earmarked for increased teacher salaries and new hires (50%), support staff (25%), and the rest (25%) would go to the Arizona Teachers Academy, teacher mentoring, retention and career development programs.
There are two important things to bear in mind regarding Prop. 208. First, it is a statute, a state law, which means that Arizona constitutional law is superior to it; second, since voters passed the Voter Protection Act (Prop. 105) in 1998, a constitutional amendment, neither the legislature nor the governor can repeal or modify Prop. 208 in any significant way.
Either of these two aspects of Prop. 208 may lead to its demise.
On Nov. 30, 2020, a lawsuit was filed by the law firms of Greenberg Traurig, LLP, Snell and Wilmer LLP, and the Goldwater Institute.
In the preliminary statement, the suit lists four things that make the statute illegal: First, there is a formula in the Arizona Constitution that determines both the limits and distribution of education funding for school districts and Prop. 208 attempts to exempt itself from those limits. Second, the Arizona Constitution requires any new tax to be passed by a two-thirds majority of the legislature, yet Prop. 208 meets neither of those requirements since voters are not legislators and it passed by a narrow majority.
Third, Prop. 208 mandates that no reduction in existing education funding levels may occur, but it provides no separate funding source for that mandate which is a constitutional requirement for initiatives. Fourth, Prop. 208 attempts to restrict the legislatures constitutional authority to appropriate general funds.
It is hard to imagine Prop. 208 surviving this legal challenge. It is harder to imagine the state government continuing to function as intended if it does.
Now, some will say that the problem is that the vast majority of the funding for the Prop. 208 campaign came from Stand for Children, an outfit in Oregon that tricked Arizona voters into passing this defective law.
That is not the problem. In fact, issues involving education belong at the state level. Admittedly, Arizona is not Oregon, but these are state issues, not federal issues, and should be fought at the state level. Sure, the Stand for Children action in Arizona was blunt and ham-handed, but there are many other organizations that engage in networking with like-minded organizations in other states that support each other, share ideas, and come up with their own local solutions.
Which brings us to the real problem which is using the ballot prop to enact tax law. There is a reason why changing tax law requires a two-thirds majority of the legislature. Taxes have a profound effect on virtually every Arizonan. They should be equitable and predictable. Requiring a broad acceptance among legislators achieves both of those ends.
The citizenry of Arizona is busy making our state and country work through our day-to-day jobs, our families and our civic groups. That is why we vote for representatives to do the limited work of our limited government.
Imagine if all the laws were created through ballot props, a form of direct democracy. Instead of doing the important work of making our state and country work, we would be constantly fighting each other in the hope of imposing our will on others with a simple majority.
