Would voters have enacted Prop. 208 had they known that a material amount of generated tax funds could languish in state accounts unless excess expenditures were authorized? Maybe, maybe not. Perhaps they were willing to risk having Prop. 208 “lurch along,” counting on the legislature to authorize exceeding the expenditure cap and avoid needlessly accumulating “hundreds of millions of dollars in unspent revenues.” Perhaps not. But there is no vehicle for making such inquiries because Fann has not shown that the transfer and allocation provisions are facially unconstitutional, which would prompt a severability analysis under Randolph. The likelihood of successful as-applied challenges should not be used as a backdoor pathway for declaring an entire initiative unconstitutional and void.
The Arizona Free Enterprise Club is one of the plaintiffs in this lawsuit (and is likely the funding party). AZFEC President Scot Mussi celebrated today's decision in a statement to Arizona's Law/Arizona's Politics, already referring to Invest In Ed in the past tense:
"This was a great win for taxpayers, small business and the rule of law. Prop 208 was a poorly drafted measure that would have caused severe damage to Arizona's economy. We are looking forward to the trial court determining that the law exceeds the constitutional expenditure limitation and officially strikes down the measure."
On the other side, Save Our Schools called the decision "an affront to our right to self-governance" and stated that the referenda petitions they and Invest In Arizona are circulating to stop three of the Legislature's efforts to un-do Prop. 208 are more important than before to avoid "the twin blows of that lss and the impending loss of another $1B per year due to the legislature's massive tax cuts."
Another interesting aspect of this is whether those bills passed by the Legislature this year will actually change the outcome of the test ordered today by the Supreme Court.
"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet.