Here's Why the Court Challenge to Minimum-Wage Initiative Was Inevitable

Clipboards in hand, they wave down grocery shoppers and fairgoers, sweat dripping down their faces in the 120-degree Phoenix sun.

"Hey, can you sign a petition?"

In what appears a noble testament to the cause of the day — raising the minimum wage, legalizing marijuana — they keep at it for hours, wrangling with grouchy people, shaking off rejection after rejection, to gather support to put legislation on the ballot.

But, in reality, the vast majority of the signature gatherers hailing passersby in the parking lot are motivated by something far more concrete than passion for democracy.

They're in it for the cash: $1, $2 — sometimes $5 — per signature. 

Experts say it's nearly impossible these days to get an initiative on the ballot without spending hundreds of thousands of dollars to hire circulators. In Arizona, in fact, not a single campaign in at least 15 years has managed to propel an issue to the voting booth on volunteer enthusiasm alone.  And the process gets more difficult every year. 

For one thing, as Arizona's population grows, the number of signatures required goes up. To get an initiative on the ballot, campaigners need the backing of at least 10 percent of the number of voters who cast ballots in the previous gubernatorial election — a more ambitious target than nearly any other state. This year, the magic number is 153,642. 

Dozens of high-profile initiatives, relying on volunteers to pitch in on weekends, have fallen short of the threshold over the past decade. In the meantime, according to campaign-finance reports, the price of calling in an army of out-of-state petition gatherers has jumped from $100,000 to nearly $1 million. 

The government also keeps instituting new regulations. 

States have been trying to crack down on paid circulators, in particular, nearly since they started trawling the country, collecting signatures for 3 cents each in the wee years of the 20th century. Several states went so far as to ban the practice in the 1940s, but were rebuffed by federal courts in the 1980s. Subsequent attempts to control the process have been persistent but more subtle, such as forcing circulators to wear badges identifying themselves as paid employees or requiring campaigns to compensate circulators by hour worked rather than by signature gathered. 

Arizona has tweaked or added more than 30 provisions concerning the petition process in the past decade, making the state's oversight among the strictest in the country, said Andrew Chavez, owner of Petition Partners, a Phoenix-based company that offers circulators for hire. 

Paid circulators must undergo a background check and register with the Secretary of State's Office prior to collecting a single signature. Those with felony records and those who are not registered to vote are weeded out. 

There are also precise rules about filling out the forms that, if not followed to the letter, could result in some or all of a circulator's signatures getting disallowed. For example, the date must be written month/day/year. Circulators must gather no more than 15 signatures per page, which must measure 8.5 by 11 inches. The person signing the petition must write name, address, and other identifying information in their own handwriting. Each petition must be stamped by a notary. If even just one corner of the stamp is faded or smudged, the petition is rendered invalid. 

This year, for the first time, the secretary of state was empowered to disqualify petitions that were filed incorrectly. Also for the first time, opponents of a campaign were allowed to call circulators in for court questioning if they suspected they were not properly registered. 

"There is no legal room for discretion," Chavez said. "Everything has to be strictly compliant."

Already, the new changes have caused a serious headache for Arizona Healthy Working Families, a group rallying to raise the minimum wage from $8.05 to $12 per hour.

The group paid a new firm, Sign Here Petitions, nearly $1 million to collect 271,883 signatures.

But the Secretary of State threw out about 30,000 for clerical errors. Then the Arizona Restaurant Association filed suit, alleging that 170 circulators were not properly registered or had otherwise messed up their paperwork. Last week, in response to the court challenge, a Maricopa County Superior Court judge threw out another 50,000 signatures after dozens of circulators, many of whom live out of state, didn't respond to subpoenas, making the signatures they collected automatically invalid.

The scrutiny is largely political, said Daniel Smith, a professor at the University of Florida who studies direct democracy.

Because most issues don't go to popular vote until after a bill has been shot down at the Capitol, an initiative essentially amounts to a citizen-powered attempt to override the will of the legislature, Smith said. Regulating direct democracy, therefore, is about protecting power. 

It's so common for those who oppose an initiative to challenge the integrity of paid petitioners or the validity of the signatures they gather that Chavez said he just "plans on going to court." 

"You work from litigation backwards," he said. "You anticipate that every step you make is going to be reviewed." 

Some concern about cheating is legitimate. 

Paid petition gatherers in Florida, in the 1990s, for example, copied names from the phone book and death rolls. In Montana in 2006, circulators tricked voters into signing petitions by lying about the content of the initiative. In Arizona in 2008, circulators working on three separate initiatives were caught using ludicrously fraudulent signatures, such as "Jimmy Carter" and "Gerald Ford."

Perhaps surprisingly, however, according to Smith's research, paid petition gatherers are actually no more likely to commit fraud than their volunteer counterparts. That's probably because, he argues, the process has become so complicated, most campaigns are forced to contract with an outside organization to recruit circulators and collect signatures. If those organizations don't deliver clean, verifiable signatures, they risk going out of business. 

"You'd think a volunteer would be more invested in doing a good job than someone who's just looking for a paycheck," Smith said. "But sometimes the passion gets the best of them."


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