The War on Initiatives in Arizona

On April 14th, 2017, Arizona Governor Doug Ducey signed House Bill 2244 into law. The bill primarily calls for the following:  “Constitutional and statutory requirements for statewide initiative measures must be strictly construed and persons using the initiative process must strictly comply with those constitutional and statutory requirements.”*

The bill as introduced by House Representative Eddie Farnsworth (R-12) pertained to concealed weapons permits and “electronic reports.” That bill’s text was stricken in the Senate Appropriations Committee, where all six Republicans voted in favor, and all four Democrats voted against the measure to replace the bill’s language and intent.*

View Senate Appropriations Committee Votes
 


The bill passed the Senate with all Democrats opposing and all but one Republican voting in favor:*

Breakdown of Senate votes on HB 2244
Party Affiliation Yes No Abstain Total
Democrat 0 13 0 13
Republican 16 1 0 17
Total 16 14 0 30
View Senate Votes
 


In the House, the bill also passed exclusively with Republican votes:*

Breakdown of House votes on HB 2244
Party Affiliation Yes No NV/E Total
Democrat 0 23 2 26
Republican 34 0 1 34
Total 34 23 3 60
View House Votes
 


Legislators in favor of the bill note, in the text of the bill, that initiatives give “extraordinary power” to voters. They write that courts have required strict compliance when a legislative tool is considered an extraordinary power. In order to amend any voter-approved initiative, Arizona’s Voter Protection Act requires three-fourths of the state House and Senate to vote for the amendment. This stipulation inhibits the legislature from changing or correcting voter-approved measures. Thus, according to the authors of the bill, the initiative has become an extraordinary power, requiring that it be held to a standard of strict compliance to constitutional and statutory requirements.*

The measure could result in individual signatures or entire pages of signatures on petitions being thrown out due to minor instances of noncompliance. If a page has more than the maximum of 15 signatures, it could be thrown out. If an address is deemed to be illegible, the signature could be thrown out. If a petition sheet does not conform to size requirements, the entire page could be thrown out. A signature might also be stricken if the signer uses a shortened version of a name such as “Jim” for “James.”* Such rules were in place prior to the passage of this bill where 20 different discrepancies could result in a page of signatures or individual signatures from being counted. However, before HB2244, only “substantial compliance” was deemed necessary, allowing officials leeway in determining whether a minor example of noncompliance was serious enough to warrant rejection.*


Other Battles in the War

In addition to the strict compliance bill, Republicans authored House Bill 2023, signed into law by Governor Ducey on March 9th, 2016, which makes it a felony to collect and turn in ballots unless one is an election official, family member of the signer, or a mail carrier. Although presented as a way to protect the integrity of elections, no Republican has furnished evidence of a single instance in which someone has tampered with ballots. On the other hand, this law makes it impossible for organizations behind various initiatives to pay groups to collect ballots once initiatives have received a sufficient number of signatures to get them on the ballot.*

On March 23rd of this year, Governor Ducey signed House Bill 2404 into law, which outlaws pay-per-signature gathering of signatures on citizen initiatives. The bill also requires that signature collectors be paid minimum wage and raises the total days election officials have to verify signatures. Critics charge that, because of the law, signature collectors will have less incentive to collect as many signatures as possible. Legislator Doug Coleman, who voted in favor of the bill, responded that petition gatherers can simply use volunteers. However, an analysis of initiatives that went to ballot over four election cycles found that none made it using only volunteers.* As with HB2244 and HB2023, HB2404 was authored by and voted for exclusively by Republicans. As with HB2023, sponsors and passers cited concerns of protecting voters from fraud, though they again furnished no evidence that such fraud had occurred.* In fact, available evidence suggests that how signature-gatherers are paid has no relationship to prevalence of fraud.*


Initiatives in US and Arizona History

Stakeholders in the policy surrounding initiatives include voters (who will suffer or enjoy the results), legislators (who may face political repercussions from implemented laws), signature-gathering organizations, initiative organizers, businesses, and election officials (who ultimately must implement initiative laws).

Detractors of the concept of initiatives argue that the “public legislature” allowed for by the initiative process contrasts with the Framers’ view of an elected republic that would “refine and enlarge the public views, by passing them through the medium of a chosen body of citizens.”* Those more in favor of direct democracy might cite Jefferson who wrote that “Every government degenerates when trusted to the rulers of the people alone. The people themselves therefore are its only safe depositories.”*

Arizona, like 24 other states, allows voters to propose initiatives, a law established in the state constitution at the state’s founding. Initiatives are laws or constitutional amendments proposed and voted on by voters which allow those voters to change the state government beyond and, in some cases, in opposition to what state legislators do. To get an initiative on an official ballot, a number of voters equal to 10% of the total number of voters who voted in the most recent gubernatorial election must sign a petition in favor of a particular proposal. Initiatives must be filed by the secretary of state no fewer than 4 months prior to the date of the election. Between 1970 and 2013, various entities attempted 425 petitions. Of those, 16% made it to the ballot. Of those, under half were approved by Arizona voters. This means, ultimately, that only 8% of petitions attempted became law over that period.*

Ballot initiatives have been controversial from the start. The first attempt to curtail initiatives came in 1916 after initiatives had passed granting women’s suffrage and instituting alcohol prohibition. This early attempt failed. The Voter Protection Act mentioned in the text of HB2244 was the result of a failed 1996 initiative to legalize marijuana. The initiative passed, but lawmakers gutted it the following year. In response, a 1998 initiative created the Voter Protection Act which requires 3/4 vote by state legislators in both chambers to repeal an initiative-created law and then only to “further the purpose” of the law. A criticism of the Voter Protection Act is that it caused a downgrade in the state’s credit rating. However, the state’s treasurer shows a current rating of “Very strong” from Standard & Poor’s, which is just below its best rating and very close to its rating over the past 10 years.*


The Future of Initiatives

Between 1970 and 2013, 67 of 425 initiatives made it to the ballot, less than half of those 67 becoming law. Because it currently takes more than 200,000 signatures to get an initiative onto the ballot,* it is already extremely difficult for citizens who do not feel adequately represented to defy the plans of the state’s dominant political faction.

In order to give a stronger voice to voters via the initiative process, electronic initiatives could be employed. An electronic voting system has already been successfully employed in the state since 2012 that allows state candidates to gather half of the signatures required for their nominations. A similar system could be employed for initiatives.* For now, though, unilateral efforts by members of a single party in the state, ostensibly created to protect the integrity of the initiative process and ballot-gathering, are instead more likely to reduce the ability of citizens who feel unrepresented to have a voice.

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