Last year, proponents filed more than 475,000 signatures to get the Free and Fair Elections Act on the 2022 ballot*. After an often-confusing court challenge, the Arizona Supreme Court accepted the trial judge's determination that it fell short by only 1,458 valid signatures. (237,645 were required.)
Today - 11 months later - the majority of Supreme Court justices explained how they would have calculated the complicated numbers. And, lo and behold, they did not agree with either the trial judge or one of their colleagues.
They agreed on one thing: everybody - including them - hope that the Legislature will clarify the laws. (Even as they might disagree on how the laws should be clarified.)
Last year, I wrote that I felt sorry for whichever Justice drew the short straw to write this opinion. Bill Montgomery is that person, and he decided that the proponents actually were 10,090 signatures shy of reaching the ballot.
He agreed that dissenting Justice Ann Timmer's calculation decisions were "plausible alternatives", but decided that his choices better interpreted more of the statutory provisions.
Nevertheless, we agree that an explicit process established by the legislature that specifically accounts for the various reviews by elections officials and challenges by individuals would be of great utility for initiative proponents, challengers, and courts alike.
Timmer responded in her opening paragraph.
The legislature provides two distinct methods for determining whether the constitutionally required number of valid petition signatures supports placing an initiative on the ballot, which I describe as a “projected-count method” and an “actual-count method.” The majority blends the two to create a hybrid calculation method that is unsupported by our laws.
But, she concludes with a similar appeal to the lawmakers - and by noting that, until then, the courts should err on the side of placing a citizens' initiative on the ballot.
In sum, I would have reversed the superior court’s judgment and instructed it to enter a judgment directing the Secretary to qualify the initiative for the ballot. This is, by no means, an obvious result, as demonstrated by the several different calculation methods used by the trial court, the parties, the majority, and me, all of which are purportedly based on the same statutes. The legislature has clearly authorized persons to challenge placing initiatives on the ballot in ways other than challenging the Secretary and the county recorders’ actions, see §§ 19-118(F), -122(C), but unfortunately it has not provided a clear procedural path for doing so. As a result, parties, attorneys, and judges are left to read, re-read, and re-read again the statutes to identify that path. The stakes are high as getting it wrong would divest the voting public of its valuable right to self-govern. The legislature would serve the public good by clarifying its statutes on these points.
The challenge to the Free and Fair Elections Act - which would have made many changes to Arizona's elections - was brought by the Arizona Free Enterprise Club.
If you'd like to get deep into the calculation weeds that has vexed judges, justices, attorneys, proponents, and opponents, here is the full Opinion. And, with several groups gearing up to collect signatures during the next several months, you will not be alone.
* Disclosure: I did not represent the Free and Fair Elections Act, but was heavily involved in attempting to qualify it for the ballot.
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