Friday, April 17, 2020

UPDATE: Enter the Appeal - Initiative Groups Ask 9th Circuit To Permit Online Petition-Gathering

The two initiative groups which lost their bid to force Arizona's Secretary of State to permit online signature-gathering in light of the pandemic social distancing orders have quickly appealed to the 9th Circuit Court of Appeals.

U.S. District Court Judge Dominic Lanza ruled against Arizonans for Fair Elections and Healthcare Rising AZ on Friday, saying that the Arizona Constitutional provision requiring initiative signatures to be gathered "in the presence of" a circulator cannot be ignored, even as the state has an E-Qual online system for digitally signing candidate petitions.

The groups wasted no time in filing the appeal this morning, a good move considering that the deadline to turn in more than 237,000 valid signatures is (still) July 2.

As noted in the original article, a separate effort by other groups circulating initiative positions is in front of the Arizona Supreme Court and is headed for a likely decision near the end of this month.

Here is the appeal:

READ: Federal Court DISMISSES Request To Force State To Allow Online Petition-Gathering For Initiatives During Pandemic (original article, 4/17)
Late this afternoon, U.S. District Court Judge Dominic Lanza dismissed an effort by two groups circulating petitions to force the state of Arizona to open up its online signature platform to allow the initiatives to gather signatures in light of the coronavirus pandemic.

A similar effort in state court is still outstanding.

Finding that the language of Arizona's Constitution - drafted more than 100 years ago - requires that the initiative petition must be a "sheet... signed in the presence of" the circulator must be respected.

"Enter the coronavirus," writes Lanza. It prompted plaintiffs to challenge the statutes written pursuant to the Constitution while not challenging the language of the Constitution itself. At the hearing earlier this week, Plaintiffs argued that opening up Arizona's E-Qual signature platform would substantially comply with the constitutional language.

Judge Lanza was not having it.

"Not only does this argument seem questionable, but Plaintiffs are effectively asking a federal
court to make a guess about an unsettled question of state law and then, based on that guess,
overturn a century-old state-law election rule. This outcome would be distressing from a federalism perspective and is precluded...."

Earlier today, the state of Arizona and the plaintiffs unloaded on each other in post-argument pleadings. The state asked Judge Lanza to refer the constitutional question to the Arizona Supreme Court if it was inclined to grant plaintiff's relief. "One cannot “substantially comply” with a (constitutional) requirement by obliterating it."

Attorney General Mark Brnovich explained it to Arizona's Politics/Arizona's Law this way: "We all share a common concern for public safety during this pandemic, but you can’t use a health crisis to disregard our state constitution. My job is to defend the law, and it is ultimately up to policymakers to decide whether they want to expand access to E-Qual, not the courts or the Secretary of State.”

The separate action already in front of the Arizona Supreme Court will likely be decided near the end of April.

More than 237,000 valid signatures turned in before July 2 are required for an initiative to be placed on the November ballot, and more than 356,000 for a proposed constitutional amendment petition.

The coronavirus response has made it extremely difficult to collect sufficient numbers of petition signatures.

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