A new law signed by Governor Doug Ducey last week doesn't destroy the initiative system in Arizona, but may weaken it.
Foes of the law don't want to find out what it does: They predict a fight that either reverses the bill in court, or allows voters to decide its fate.
The law, which started this year as HB 2404, bans per-signature payments to people hired to collect petitions for a ballot measure. Violators would be guilty of a Class One misdemeanor.
Republican lawmakers launched four proposals this legislative session targeting Arizona's century-old process that allows the people to make their own laws directly, but HB 2404 is the only one — so far — to survive.
The votes for the bill in the House and Senate were divided strictly along party lines. It passed with no Democratic support.
Ducey referred indirectly to the idea of fraud in his only statement about the law:
"It protects the voters' ability to directly weigh in on how the state is run; provides for an additional check on the legality and accuracy of initiative language; helps increase the likelihood of quality, accurate signatures; and ensures that signature gathers are paid appropriately for their work," he said.
"We live in a state where citizens have significant input into the policy-making process. That’s a good thing, and this tweak to the law helps ensure the integrity of ballot measures moving forward."
The line about protecting voters' ability to create law is arguable, to say the least. The law actually aims to deliver a smaller number of ballot measures that voters could decide, which clearly erodes their ability to "weigh-in."
Citizens' initiatives often reflect liberal ideas hated by the GOP members of the Arizona Legislature. The new law is widely believed to be payback for Prop 206, the ballot measure approved by voters last year that boosts the state's minimum wage.
Going back a few years, it was a marijuana law that really ticked off the Republicans. In 1996, voters overwhelmingly approved medical-marijuana law and drug-law reform, making it illegal for the the state to sentence first- and second-time drug offenders to jail.
Lawmakers gutted the bill, and in response, voters approved the Voter Protection Act two years later. Since then, it takes a 3/4 majority in the Legislature to change a voter-approved law, and even then the change has to "further the purpose" of the law.
To make a law, the first step is for you and your friends to pound the streets as volunteer petition gatherers. You'll need to find more than 150,000 registered voters to sign the petitions just to put something on the ballot. Then, all your political campaign has to do is convince people to vote "yes" on the measure.
The process in theory can be achieved with volunteers, but it almost never is. The typical route for campaigns is to hire signature gatherers, paying them in the range of two to six dollars per signature. Experts say it costs a few hundred thousand dollars, at minimum, to gather enough signatures to launch a ballot measure.
The new law focuses on the petition-gathering process, prohibiting not only direct per-signature payments, but also any pay that indirectly compensates workers for the number of signatures they gather. Campaigns can pay an hourly wage to petition gatherers, for example, but they can't give them a big bonus for collecting more signatures than fellow workers.
The paid circulators, and the people who hire them, also face tougher registration requirements.
They have to file a minimum bond, depending on how many signatures they plan to gather. For a statewide ballot measure, the bond amount would have to be $50,000. Previous law banned people from registering as circulators if convicted of fraud, forgery, or identity theft, or if they had been convicted of a felony and not had their rights restored.
Now, the law stipulates that any legal violations by any hired circulators will count as violations by their employers, with a potential $10,000 fine per violation looming over the operation.
The law ends the tradition of turning in all the signatures at a set deadline, usually July for a measure intended for November's ballot. Instead, campaigns would have to submit their monthly collections on the 15th of every month. The Arizona Secretary of State's office can immediately begin sorting through the filings for invalid signatures, and the signatures would be available for public review within five business days of each filing.
The law also extends the review process for signatures from five to 10 business days, which benefits those opposing any particular ballot measure.
Ducey's "tweak" undoubtedly hurts the ballot-measure process and will probably raise the cost of a campaign by 30 percent, said David Berman, a senior research fellow in politics at Arizona State University's Morrison Institute.
The public's "vote is being threatened," Berman said. "People are making it more difficult to put something on the ballot for you to make a decision on."
Like other critics of the new law, Berman points out how it wasn't made to apply to the signatures that must be gathered by political candidates.
Yet Berman and other critics said they don't believe the law would have much impact. Special-interest groups without a strong funding source might suffer. Others would do fine. Grassroots group could still use volunteers, or a volunteer-heavy mix with some paid circulators.
"We definitely will be able to do initiatives," said Bill Scheel, a partner in Javelina, the "branding agency" that ran the successful minimum-wage campaign on behalf of out-of-state labor-union interests. "It'll make it tougher for the average interest group, and more expensive."
At the same time, the law makes it easier for "corporate interests to freeze out the other guy," Scheel said.
It's the "unrelenting effort" by the GOP to step on direct democracy that steams him most, Scheel said, saying the law was "absolutely" retaliation for the victory of Prop 206.
Nor would the law fight "fraud," Scheel claimed.
"The excuses [for the law] are completely made up," he said. "There are so many checks in the system."
In fact, even former Governor Janet Napolitano, a Democrat, argued in her 2009 state-of-the-state address that the state should abandon the per-signature payment method. However, Napolitano, in the same address, urged lawmakers to "increase access to the ballot by lowering our high-signature requirements."
Advocates of the law pointed to the minimum-wage campaign by Arizonans for Fair Wages and Healthy Families as the perfect example for why the law was needed.
The Arizona Restaurant Association's challenge to the minimum-wage law identified nearly 85,000 signatures they claimed were invalid. At least 150,642 valid signatures were required by July 7 out of the 271,883 turned in by the campaign. The group charged that many of the campaign's signature gatherers were convicted felons, and that more invalid signatures were expected.
A judge agreed that "scores" of signatures could probably have been thrown out, but the group's challenge hadn't been filed on time.
In November, voters overwhelmingly approved Prop 206, which mandates paid sick time in addition to raising the minimum wage to $10 an hour now, and $12 an hour by 2020.
Because of the flap over the bad signatures, the pro-minimum-wage campaign refused to pay a final installment of $65,000 out of a $965,000 bill to the Arizona company that had gathered the signatures, Sign Here Petitions.
Sign Here's owner, Bonita Burks, left without enough money to pay all of its signature gatherers, then sued the campaign.
The opponents haven't yet settled the case. But if there's one thing Burks and Scheel agree on, it's that Ducey's anti-initiative law must not stand.
Scheel told New Times he expects either a court challenge on the law, or a referendum or ballot initiative that will allow voters to decide the matter.
Under state law, the new law could be referred to the ballot by collecting 75,321 signatures of voters. For a citizens' initiative, which would be locked in by the Voter Protection Act, 150, 642 signatures would be needed.
Burks also suggested litigation, referendum, or ballot measure.
"This is what we have as a constitutional right to do," she said. "It's an assault on the process itself."
Companies like hers might be able to find a "workaround" that would create motivation for signature gatherers, she admitted. But she thinks interest groups will find it much more difficult to put something on the ballot if the law isn't reversed.
In Arizona, the heat is a factor. Signature-gatherers will be making their final push before the July deadline for a statewide measure, and an hourly wage won't cut it, she argued.
"The incentive for going out and getting a significant amount of signatures won't exist anymore," she said. "Just last week, we were in the 90s."
Burks' business model is clearly on the line, so she may be more worried than most.
It's easy to see how a well-funded interest group could manage to put something on the ballot by using hourly workers and volunteers. For instance, in April 2016, Solar City and other rooftop-solar companies plunked down $3 million to launch a campaign for a ballot measure that would favor their industry, eventually leveraging a deal with the state's largest utility that made the ballot measure unnecessary.
Oregon has had a similar law banning per-signature payments for nearly two decades.
Caroline Fitchett, an Oregon political operative and campaign expert, said that in her experience, the signature-gathering process became more "professional" when signature gatherers began working on an hourly wage basis.
"Fewer invalid signatures are found" than before the law, she said.
Fitchett worked on one of seven ballot measures in Oregon last year, helping to oversee the collection of more than 140,000 signatures for the Save Outdoor School for All campaign. Voters approved the measure, which takes Oregon Lottery funds to pay for a weeklong outdoor science trip for all state schoolchildren.
Carl Towe of CTA Petitions in Fresno, California, said he's managed signature-gathering efforts for several ballot measures in Oregon.
"This is America — you can pay anyone anything you want," he said, adding that if someone does a good job by completing a task within a certain time-frame, the worker might get a large bonus.
Bob Grossfeld, a Phoenix-area Democratic campaign consultant, agreed it was possible that companies might find "workarounds" to the new law, but said it might be tough given the law's strict wording that bans "indirect" per-signature payments.
If you like this story, consider signing up for our email newsletters.
SHOW ME HOW
Still, apart from making an initiative campaign pricier, Grossfeld expects that interest groups won't consider the law an obstacle.
"I don't think it'll be as big of a handicap as [Republicans] think it'll be," Grossfeld said.
He labeled GOP warnings of initiative fraud "fake news."
"Each time I turn around," he said, "there's some bullshit coming out the State Capitol. And it seems like it's getting worse."