Kwok: Will someone sue over ballot initiative reform?

Republican lawmakers continue taking swings at the citizen-initiative process to solve problems that largely do not exist — or at the very least, that they have not amply demonstrated.

The question is, will someone sue them over it?

Editorial by Abe Kwok, Arizona Republic

The latest debated proposals, House Bill 2244 and Senate Bill 1236, include raising the standards on compliance with state law. Disturbingly, it would take away some discretionary powers that judges currently have and make it easier to challenge, hamper or otherwise put the kibosh on a citizen-driven ballot measure.

The one piece of legislation that has passed and been signed, HB 2404, outlaws the practice of paying petition circulators by the signature. It, too, is hailed as reform needed to protect the integrity of the initiative process — that is, to prevent fraud and forgery.

What's the counterpunch? Well, it depends

Lawmakers want to change the way signatures are gathered on the ballot in Arizona. Wochit

How public-interest groups will counterpunch on HB 2404 will depend, in part, upon what happens with bills still being considered.

They appear to have at least four options, two of them involving the courts.

They could sue on First Amendment grounds. The Supreme Court, in the 1999 ruling on Meyer vs. Grant, said the ban on paid circulators in connection with ballot propositions is a limitation of political speech. The court reasoned that the state had other means to prevent the collection of fraudulent signatures — e.g. making it a crime to make false and misleading statements about petitions or to gain signatures.

Paul Bender, an ASU law professor, said the same reasoning “would seem to apply directly to bans on per-signature payment, as well as to payment by the hour or day.”

File a lawsuit or an initiative?

Or, Bender suggested this as a sounder approach: They could sue over HB 2404 in state court based on the Arizona Constitution. One reason is because federal appellate courts have ruled differently on the ban of the per-signature payment structure.

A more relevant reason, Bender said, is the 1972 Arizona Supreme Court decision in Direct Sellers Association vs. McBrayer. The court held that while the Legislature has some powers to define the qualifications of petition circulators, it can do so only if the legislation "does not unreasonably hinder or restrict" the ability to get petitions on the ballot and if the legislation "reasonably supplements the constitutional purpose."

Noted Bender, “Given that the whole purpose of the direct democracy provisions of the Arizona Constitution is to permit the voters to go around the Legislature, when the Legislature refuses to enact something that the voters want, it is unlikely that the Arizona Supreme Court would uphold legislation designed by the Legislature to make it harder for the voters to do that.”

A third option would be to take out a referendum petition to repeal the law — and possibly follow up with an initiative to lock in place all the statutes that regulate initiatives. That way, if the measure passed, it would fall under the Voter Protection Act, meaning the Legislature wouldn’t be able to tinker with the initiative process anymore.
(A referendum petition to put HB 2404 to a public vote was, in fact, taken out Thursday, but the effort is not associated or in collaboration with any of the key groups that have been fighting the initiative bills.)

Doing nothing is probably wishful thinking

Or opponents could stand pat. It would be an acceptance, albeit begrudging, of one of the more palatable changes lawmakers have contemplated. Getting an initiative on the ballot is already an expensive undertaking; having to pay petition circulators by the hour or day instead of by the signature would raise costs, for sure — but, arguably, not in a prohibitive way.

The two bills that target a higher standard of compliance and more restrictive reporting requirements now wending their way through the Legislature may well make the do-nothing scenario moot.

Should they pass, public-interest groups such as the Arizona Wins coalition say they will target GOP lawmakers for defeat in the 2018 election, citing internal polling that suggest Republican voters are equally up in arms over such legislation.

Joel Edman, executive director of the Arizona Advocacy Network, which has been at the forefront of the fight over legislative attempts at changing the initiative process, talks about the exploration of an initiative to recognize the direct democracy process as a fundamental right. That would, he says, put a burden on lawmakers to "not only point to a particular problem, but to explain why changes are needed" and, more pointedly, "narrowly tailor" a way to address the problem.

Which begs the question, shouldn’t lawmakers be already doing that?