Picture a future without ballot initiatives that actually go before voters in Arizona. That's what some critics say could happen if a recent court ruling knocking a education funding measure off the November ballot is upheld by the state Supreme Court.
On July 31, Maricopa County Superior Court Judge Christopher Coury ruled that InvestInEd, a ballot measure that would tax wealthy Arizonans to pay for public K-12 education, was ineligible for the November 2020 ballot. He sided with the plaintiffs' rationale that its 100-word summary used by petitioners was "misleading" and failed to include key provisions of the initiative. Proponents of InvestInEd are appealing the ruling, and critics argue that Judge Coury's ruling, if upheld by state Supreme Court, could create an impossible standard for ballot measures and effectively bar initiatives from going before voters.
How the Supreme Court rules also has potential ramifications for another ballot measure that's getting challenged in the courts. Smart and Safe Arizona, a ballot measure that would legalize recreational marijuana in the state, faces a similar lawsuit from opponents who argue that its 100-word petition summary was misleading. Oral arguments in the case were heard on August 6, but the involved judge has yet to rule in the case.
"I fear, if it is allowed to stand, this decision would essentially gut the initiative process in Arizona," said Kris Mayes, a former Arizona Corporation Commissioner and current professor of utility and energy law at Arizona State University. She previously advocated for Prop 127, a ballot measure shot down by voters in 2018 that would have required utility providers get half of their energy from renewable sources. "It’s an unconstitutional decision that completely undermines the ability of Arizonans in the future to directly decide issues impacting them."
InvestInEd aims to levy a tax on people with incomes of over $250,000 and joint filers earning over $500,000 to pay for public school operations, like teacher salaries. In his ruling, Judge Coury argued that the 100-word summary for the initiative left out five key provisions in a way that would mislead voters. For instance, the summary left out the exact percentages of revenue that would be allocated to various school funding purposes under the measure, as well as the fact that the scheme would tax business income that is passed along to individuals or joint filers whose income would be taxed under InvestInEd.
"The failure to include each Omitted Provision, standing alone, in the 100-word description created a significant danger of confusion or unfairness to a reasonable Arizona voter," Judge Coury wrote. "The 100-word description is misleading by its omission of principal provisions."
Critics of the ruling argue that Coury's interpretation of state law requiring the 100-word summary for ballot measure petitions would mandate a level of technical detail and specificity that would be effectively impossible to meet within the 100-word limit.
"If this is how the 100-word summary is going to be interpreted, it signals the death knell of getting initiatives on to the ballot," Dan Barr, a local First Amendment attorney, told Phoenix New Times. "The 100-word test, if applied the way the court applied it last week, it becomes an impossible test to make."
"The requirement of 100-word summary, the way that Judge Coury reads it, it’s something that just swallows up initiatives whole," Barr said. "The whole thing becomes a cynical exercise. The whole purpose of the 100-word summary is to describe in general terms what the initiative is about but to require the specificity that Judge Coury added to that would make it impossible to provide such a summary in 100 words."
Barr added that the provisions that Judge Coury said should have been included in the summary consisted of more than 100 words on their own.
"That in of itself exceeded 100 words," he said. "So I don’t know how on earth the InvestInEd people could comply with that and how anything but the simplest of initiatives could comply with the 100-word summary."
Responding to New Times' request for comment from Judge Coury, Amy Love, a spokesperson for Maricopa County Superior Court, pointed to a court rule restricting judges from making public statements that might influence pending cases.
For their part, proponents of InvestInEd argue that the five provisions cited by Judge Coury don't constitute "principle" provisions or are inaccurate descriptions of what's actually in the ballot measure.
"There’s just a fundamental disagreement on whether they’re principled provisions and whether they’re accurate," said Roopali Desai, an election lawyer representing the InvestInEd campaign.
In 2018, a similar ballot initiative was shot down by the state Supreme Courts due to inaccuracies in the measure's 100-word summary. In that case, the court argued that the summary inaccurately described the new tax rates that the measure would enact.
But some critics argue that the 2018 ruling was less significant than Coury's interpretation of the 100-word summary, because it hinged on one technical inaccuracy versus
"It’s more alarming because it’s broader," Mayes said. "The previous decision centered on the sort of technical question of percentage versus percent. This one would apply an impossible requirement on all future initiatives."
"Coury’s interpretation of it stretches it way beyond the original intention of the statute," she added.
Ballot initiatives have a long history in Arizona. The power of initiative was enshrined in the state's constitution during its founding in 1912. Since then, the state has garnered a reputation for liberally utilizing its initiative laws. Since 1912, Arizonan voters have seen over 200 ballots measures, making it "one of the most widely used direct legislation systems in the United States," according to a 2007 Seattle University School of Law article.
The 100-word summary provision was adopted by state lawmakers in 1991.
Some proponents of InvestInEd allege that the intent of the plaintiffs in the lawsuit is to not only boot the current initiatives off the ballot, but to limit the ability of future measures to get on the ballot in the first place.
"You could go back and look at any initiative that was put out before ours, they were never held to this high bar, and they wouldn't have been able to go to the voters," Joe Thomas, president of the Arizona Education Association, told New Times. "This is absolutely not only an attempt of knocking us off the ballot in an unfair way but also rewriting the constitution and denying Arizonans the right to have a process of direct democracy."
But the people behind the plaintiffs in the lawsuit against InvestInEd, the Arizona Chamber of Commerce-backed group Arizonans for Great Schools and a Strong Economy, argue that they don't have a long-term play in mind.
"The initiative process is a form of lawmaking, and in fact, it is a high-stakes form of lawmaking considering that measures adopted at the ballot box are nearly impossible to amend in the future even in cases of a public emergency or some completely unintended consequence," said Garrick Taylor, a spokesperson for Arizonans for Great Schools and a Strong Economy and senior vice president at the Arizona Chamber of Commerce. "There should be rigor around the entire process."
He did acknowledge that the ruling could potentially raise the bar for future ballot initiatives.
"The more complicated these ballot questions get, the more challenging it will be for proponents to convey to voters the principle provisions," Taylor said. "And it’s going to be something that proponents will have to keep in mind going forward."
"It’s terribly, terribly similar to the issue here with the Smart and Safe initiative," Gary Smith, a local marijuana attorney said of the InvestInEd case. "For better or worse, there haven’t been a lot of these cases that have ever popped up in Arizona history."
Yet Smith said that Judge Coury's ruling doesn't necessarily deal the Smart and Safe initiative a death blow.
"I won’t say people are going to walk into this argument already losers," Smith said. "I am a little more concerned about Smart and Safe, but the court is ultimately going to have to read and decide if it suffices."