BREAKING: AZ Supreme Court Clarifies Prohibition On Paying Petition Circulators By the Signature; Or, Did They? (READ Opinion)

UPDATE, 1pm: Jim Barton represented Invest In Education in the original action. He also tells Arizona's Law he would like more attention to the underlying democracy issue: "It is good that the Court would narrowly construe a criminal statute restricting speech.  It would also be good for democracy if they would treat other restrictions on speech, specifically direct democracy, with the same suspicion." (We have added this quote to the article.)

**********

The Arizona Supreme Court today issued a unanimous opinion upholding the constitutionality of a law prohibiting per-signature payments to petition circulators for initiatives and referenda. However, in finding that the 2017 statute is not constitutionally vague or overbroad, they left the door open for more creative incentives.

The criminal case stems from the 2018 Invest In Ed initiative effort. The petition circulating contractor came up with several workarounds to incentivize circulators to collect enough valid signatures. The Supreme Court did not then rule on the constitutionality of the prohibition against per-signature payments because the effort had enough to get on the ballot. (The measure succeeded and the Supreme Court then invalidated it on other grounds.)

The state then criminally charged Petition Partners with approximately 50 misdemeanor counts. The  Court of Appeals found the statute to be unconstitutional on its face.

Today's opinion from Justice Clint Bolick reverses that determination "although we approve much of its reasoning." Several times, the opinion notes that it is clarifying its comments about the statute made in the initial decision on whether or not the initiative would be on the ballot.

Here, overbreadth concerns arise not from the statute itself, but from the erroneous reading of our decision in Molera.  “Facial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute.”  As we clarify here, the statute forbids only per-signature compensation, leaving other productivity-based compensation intact.  Our clarification also means that the statute is not vague on its face, as permissible and prohibited conduct are clearly demarcated.  (I've added the emphasis and eliminated the cites to other cases. This was paragraph 27 of the opinion, below.)

The Superior Court will now need to take evidence and testimony about the specific pay scales and incentives - including getting more spins on a prize wheel when you collected a certain number of valid signatures. 

And, future initiative or referendum efforts will have to expect that their efforts will be challenged. (The Legislature has made it nearly impossible for all-volunteer efforts to reach the ballot.) 

Chandler attorney Tom Ryan tells Arizona's Law the Justices should give more focus to the intent behind one of their setting-the-stage paragraphs: "We begin by recognizing that the right of the people to initiate legislation and constitutional change is central to Arizona’s political heritage.  In turn, gathering signatures to qualify measures for the ballot is core political expression protected by the First Amendment." (citations removed)

"This should be the over-arching thought," said Ryan.

Jim Barton represented Invest In Education in the original action. He also tells Arizona's Law he would like more attention to the underlying democracy issue: "It is good that the Court would narrowly construe a criminal statute restricting speech.  It would also be good for democracy if they would treat other restrictions on speech, specifically direct democracy, with the same suspicion." 

"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. 

AZ Law airs on non-profit Sun Sounds of Arizona, a statewide reading service that provides audio access to printed material for people who cannot hold or read print material due to a disability. If you know someone who could benefit from this 24/7 service, please let them know about member-supported Sun Sounds. And, YOU can donate or listen here. 

Previous episodes of AZ Law can be streamed or downloaded here, or wherever you get your podcasts.