Friday, August 18, 2023

HINTS FROM THE COURTS: The Arizona Litigation Landscape For the Abortion Rights Initiative and Other Citizens’ Petitions (NEWS ANALYSIS)

(Arizona's Law is an independent, non-partisan legal and political news blog. When we engage in analysis or commentary, we attempt to label it as such. This article may be classified as "news analysis" because it attempts to "provide interpretations that add to a reader's understanding of a subject.")

Arizona’s Law generally reports on events that have happened or are about to happen. Several recent Arizona appellate opinions point to very interesting developments in the area of initiative and referendum law. Some intriguing statements recently may impact the sure-to-come litigation challenges to initiatives and referenda seeking to be on the 2024 ballot - such as the announced abortion initiative - not to mention the ongoing litigation trying to undo the 70%+ of the voter approval in 2022 of dark money disclosure initiative.

(COMING SOON: We plan to continue this type of news analysis later this month, on the intersection of attorneys' ethical requirements, sanctions and the First Amendment. We have covered the "Sanctions Scoreboard", and would like to add some context and analysis.)

The Supreme Court decided Voice of Surprise v. Hall (below) on Monday. The case involved a filed referendum petition which omitted the legislative act being referred from the petition when it filed the application for the referendum number. However, the measure was attached to all signed petitions. The issue was whether the referendum petitions should be tossed out as a result of the error at the time of application. 

The court held that such a remedy was not authorized by statute; the case was remanded to consider a counterclaim filed by the proponents. (Tim LaSota, attorney for the referendum proponents, tells Arizona’s Law that the ordinance is still on hold pending resolution.)

The intriguing discussion in the case concerns the battle between “strict” construction of referendum statutes versus “substantial” compliance. For decades, the court-developed standard was “substantial” compliance. And then, in 1989, the legislature enacted a session law mandating that standard. In 2015, the legislature enacted a session law requiring the “strict” compliance standard. What is the standard? It makes a large difference.

The incredible turnout in this month’s Ohio referendum - that was universally seen to be a ploy to make an Ohio November 2023 abortion initiative harder to pass - illustrates both the pull issues have on voter energy and the ferocity of the litigation surrounding the efforts. Days after the voters of Ohio defeated the referendum, the Ohio Supreme Court held that the November initiative could remain on the November 2023 ballot.

On the day of the Ohio vote, a coalition of several groups filed an Arizona initiative to protect a person’s right to reproductive choice. Expect fierce litigation at every step of the process. Last year, over 70% of Arizona voters approved an initiative lifting the veil on dark money. In addition to the litigation before the election, three lawsuits have been filed to overturn that vote; the first one ruled on was dismissed, affirming the passage of the initiative. (There is now an amended complaint).

BACKGROUND: Before getting into what our courts have recently said, let’s recall the role of initiative, referendum and recall in Arizona history. The Supreme Court set out that history in Bennett v. Napolitano in 2003. The Arizona Constitutional Convention of 1910 added all three to the draft constitution that would go into effect if Arizona became a state. President Howard Taft – who later became the Chief Justice for the U.S. Supreme Court(!) - detested judiciary recall. He vetoed the resolution for Arizona’s statehood. In August 1911, Congress passed another resolution admitting Arizona to the Union only if the recall of judges was removed from its constitution. In January 1912, Arizona voters removed the recall of judges from the constitution. Arizona became a state on February 14, 1912, when Pres. Taft signed the resolution making Arizona the 48th state.

Arizonans promptly voted to amend the new constitution to reinsert the recall of judges at the November 1912 election. For about 80 years, the will of the people as expressed in their votes on initiatives and referenda was mostly given deference by the elected legislators. That ended in the 1990s

Several medical marijuana initiatives were passed and then gutted by the legislature and the governor. The proponents of those initiatives brought the substantive issue back with yet another initiative and paired it with an initiative called the Voter Protection Act which was passed by the voters in 1998. It protected initiatives and referenda passed by the voters from being amended without a 3/4s vote of the Legislature and allowed only amendments that furthered the purpose of the passed measures.

The Constitution allows the passage of statutes governing the details of implementing initiative and referendum. Many legislators have bristled at the voters’ use of their powers to legislate by initiative or referendum, especially since the Voter Protection Act made it so difficult to amend such statutes. Therefore, under the general notion of protecting the integrity of the initiative and referendum processes, many highly technical requirements have been enacted. 

Such requirements have resulted in abundant litigation over technicalities having nothing to do with the core issues of whether an initiative or referendum has sufficient signatures, is timely, proper and the like. Issues such as circulator qualifications, paid circulators, font size, adequacy of the 100-word summary, etc. have predominated.

NOW: When does a regulation of the process become an infringement on the cherished right to initiative and referendum?

In Voice of Surprise, the court virtually invited such challenges by stating:

 “Notably, VOS does not argue that requiring strict compliance with § 19-111(A)’s mandate to include the text of a challenged ordinance within the application as well as within the petition sheets unreasonably hindered or restricted VOS’s constitutional right of referendum, making that provision unconstitutional in its application.  We therefore do not address the constitutionality of applying § 19-111(A) in these circumstances to disqualify the referendum effort.” (citations omitted)

In footnote 1, the Court points out that “Section 19-101.01 also requires courts to strictly apply constitutional requirements for the form and manner of referenda.  This conflicts with Whitman and a host of other cases. (cites cases).”

This week, the Supreme Court, in a mental health-related case, also defined “strict” and “substantial” in the election case context:

 “strict compliance” is a term of art used in election law cases.  In that context it connotes an intolerance for technical errors, and contrasts with “substantial compliance”—a standard that instead tolerates errors if the purpose of the relevant statutory requirements was nevertheless fulfilled.”

In June, in the important AZ Petition Partners v Thompson case, the Supreme Court addressed a recent statute that barred paying petition circulators by signature. In that case, the circulators were paid by the hour but were eligible for productivity bonuses. The State filed 50 various criminal charges for violating the statute due to the circulators being paid by the hour with certain incentive programs. The court analyzed the statute by applying strict scrutiny pursuant to the First Amendment. The court remanded the case for development of an evidentiary record, noting that “the statute forbids only per-signature compensation, leaving other productivity-based compensation intact.” It’s a very practical opinion reconciling the need to have integrity of circulators with the core nature of signature gathering as speech.

CONCLUSION: This Supreme Court trend may have begun last September when the Justices explained their reasons for not removing the Stop Dark Money initiative (officially known as "Voters' Right to Know Act") from the ballot. The Legislature had required paid circulators to file a new affidavit for each initiative they collected signatures for. However, the online portal did not allow them to do so. Opponents tried to disqualify their signatures for disregarding the statute. The Justices were not having it:

"Challengers assert we should not excuse the Committee’s noncompliance with § 19-118(B)(5) because it could have submitted new affidavits by mail or email, even if the Secretary would have rejected them, or sought a court order forcing acceptance. This is a bar too high. The legislature required the Committee to follow the Secretary’s procedures, see § 19-118(A), and the Committee did so. Disqualifying signatures for adhering to the Secretary’s registration requirements would be tantamount to blessing a trap laid for unwary sponsoring committees." (Emphasis added)

"A bar too high." This recent series of opinions from the Arizona Supreme Court shows that the opponents of initiatives/referenda/recalls may have finally found their legislative limit for tightening the screws on those circulating petitions to reach the ballot. 

BUT, A CAVEAT: Of course - as shown by the measures referred to the ballot by the Arizona Legislature in 2022 and for next year - the voters can raise the bar on themselves. Ohioans refused to do that this month, and it is unlikely that Arizonans would pass a similar measure. However, if we did, it would not be too high a bar for the courts.

DISCLOSURE: Publisher Paul Weich was heavily involved in the Voters' Right To Know (Stop Dark Money) initiative effort, as well as many other initiatives and referenda. (In fact, he twice hosted live-streamed telethons to discuss the measures and interview proponents.

"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. 

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