Arizona Supreme Court Split 5-2 to Kick Invest in Ed Initiative Off Ballot

#RedForEd supporters were stunned by the Supreme Court kicking an initiative to fund schools off the November ballot.
#RedForEd supporters were stunned by the Supreme Court kicking an initiative to fund schools off the November ballot. Zee Peralta
click to enlarge #RedForEd supporters were stunned by the Supreme Court kicking an initiative to fund schools off the November ballot. - ZEE PERALTA
#RedForEd supporters were stunned by the Supreme Court kicking an initiative to fund schools off the November ballot.
Zee Peralta
The Arizona Supreme Court kicked the Invest in Education initiative off the ballot in a 5-2 vote, according to a new opinion released today which revealed the logic behind a ruling that outraged educators.

The Court issued a per curiam decision with Vice Chief Justice Robert Brutinel and Justices John Pelander, Clint Bolick, Andrew Gould, and John R. Lopez IV in the majority.

Chief Justice Scott Bales wrote a dissenting opinion and was joined by Ann Scott Timmer; Timmer also wrote a separate dissent of her own.

On August 29, the Supreme Court knocked Invest in Ed off the ballot, issuing a brief order that cited the misleading language of the ballot measure. But until today, the court had not released a full-length opinion.

The monthslong delay frustrated teachers with the #RedForEd movement, who wanted to know the vote breakdown of the decision that killed an attempt to raise income taxes to fund schools.

The ruling was split 5-2, so an expansion of the court under Governor Doug Ducey made no difference in the outcome of the ruling that killed Invest in Ed.

But because Ducey's campaign staff seemed to accurately predict the 5-2 breakdown of the decision in August before it was made public when they fed the vote tally into the local media rumor mill, opponents are likely to criticize an apparent breach of Supreme Court confidentiality.

The majority of the court agreed with Invest in Ed's opponents that the measure's language would have eliminated the inflationary indexing of tax brackets, increasing taxes for most Arizonans in spite of the initiative's stated goal of only raising taxes on the wealthiest.

As a result, the court concluded that omitting this fact from the measure's 100-word summary presented to petition-signers was a problem.

"A description indicating that other people’s taxes will be raised, but not the taxes of most of those signing the petition, creates a significant risk of confusion or unfairness and could certainly materially impact whether a person would sign the petition," the majority wrote.

Additionally, the majority concluded that a math error related to percentages versus percentage points in the initiative's description of the tax rate increase created another layer of confusion which might have dissuaded people from signing the petition if the tax increase was presented differently.

The Invest in Ed summary said that the measure would increase taxes by 3.46 percent and 4.46 percent on two tax brackets, "which on its face seems modest," the justices wrote. "However, the affected tax rates would
actually increase by seventy-six percent and ninety-eight percent, respectively."

The majority continued, "This difference is so significant that it could materially affect whether a person would sign the petition, as it is one thing to increase someone’s taxes by between three and four percent and another to nearly double them."

Teachers with the #RedForEd movement were incensed when the Supreme Court struck the initiative from the ballot. They accused Governor Doug Ducey of packing the Supreme Court in light of a 2016 law that expanded the bench to seven justices, empowering the governor to appoint two more.

So far, Ducey has appointed three justices to the court: Clint Bolick, John R. Lopez IV, and Andrew Gould.

Nevertheless, the expansion of the court appears to have made no difference in the outcome – even without the addition of Lopez and Gould, Invest in Ed have have been struck in a 3-2 ruling.

click to enlarge Educators and supporters gather at the Arizona Supreme Court on August 31 to protest a decision that kicked a school funding initiative off the ballot. - JOSEPH FLAHERTY
Educators and supporters gather at the Arizona Supreme Court on August 31 to protest a decision that kicked a school funding initiative off the ballot.
Joseph Flaherty
#RedForEd educators pre-emptively targeted the two justices who are up for a retention election next month, Bolick and John Pelander, a 2009 appointee by governor Jan Brewer.

And although the teacher-activists didn't know the vote breakdown at the time, as it turns out, both Bolick and Pelander voted to kill the Invest in Ed Act.

After the Arizona teachers' strike in April, educators gathered 270,000 signatures to put the Invest in Education Act to voters.

Written by the liberal Arizona Center for Economic Progress, the measure was to enshrine a dedicated revenue source for schools in state law, thwarting the tax-allergic Legislature to raise $690 million annually. 

The measure would have increased Arizona's top income-tax rate from 4.54 percent to 8 percent for individuals earning over $250,000 and households earning over $500,000; the rate for individuals earning over $500,000 and households over $1 million would have increased to 9 percent.

An opposition committee funded by the Arizona Chamber of Commerce sued to block the initiative, and although a Maricopa County Superior Court judge initially ruled in favor of Invest in Ed, the Supreme Court overturned the decision in the bombshell ruling.

The full-length decision confirmed a rumor spread by the governor's campaign staff, raising new questions about whether someone with knowledge of the vote breakdown selectively leaked the news.

When the Supreme Court issued the order in August, Ducey's campaign staff immediately began to spin the news, spreading the word that it was a 5-2 decision via text messages to reporters like 12 News' Brahm Resnik, with the implication that the expansion of the court had no effect on the outcome.

Ducey and his flack have denied that the vote breakdown was leaked to them, which would have violated the confidentiality of the process.

Supreme Court staff opened an inquiry into a possible leak last month. However, when asked about an outcome to the inquiry on Friday, the court's director of government affairs, Jerry Landau, told New Times in an email, "We do not know how the statement originated."

Meanwhile, Ducey's opponents denounced him. His Democratic challenger David Garcia called the ruling a sign of "corruption" and Arizona Education Association President Joe Thomas said that the decision "sealed the fate of the governor."

Writing in the minority, Bales and Timmer disagreed that the errors were enough to justify striking the initiative from the ballot, with Bales arguing that the 100-word summary is "not inaccurate but ambiguous" regarding inflationary indexing.

Moreover, he wrote, an initiative's 100-word summary is not a complete description.

"We have never required perfection in drafting as a condition for the valid exercise of legislative authority, and doing so with initiatives would infringe upon the people’s constitutional right to enact laws independently of the legislature," Bales wrote.

In her own dissent, Timmer argued that the court's majority made a mistake when interpreting ambiguous language in the initiative to conclude that inflationary indexing would be eliminated. They should have let voters weigh the arguments, she said.

"As Chief Justice Bales points out, the proponents’ claim is supported by a reasonable interpretation of the measure’s language," Timmer wrote. "The majority should have ended its inquiry there and resisted the petitioners’ call to resolve the ambiguity in the measure’s language to decide whether the 100-word description is sufficient." 
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Joseph Flaherty is a staff writer at New Times. Originally from Wisconsin, he is a graduate of Middlebury College and Columbia University’s Graduate School of Journalism.
Contact: Joseph Flaherty