It is a rare day indeed when I agree with GOP apologist and former flack for the Goldwater Institute and Arizona Chamber of Commerce and Industry, Robert Robb of the Arizona Republic, but stranger things have happened.
Robb recently wrote that Ballot measures may be flawed, but justices should reject these challenges:
In 2018, the Arizona Supreme Court tossed the Invest in Ed initiative off the ballot because of flaws in its statutorily required 100-word summary.
Perhaps inevitably, all the initiatives that, at first count, have sufficient signatures to qualify for the ballot this year now face legal challenges to their 100-word summaries.
These challenges will ultimately make their own way to the state Supreme Court. The justices should reject them. And, to avoid a continuing avalanche of such challenges in future elections, they should clarify what was peculiarly egregious about the 2018 Invest in Ed initiative that warranted an exception to the generally broad discretion initiative proponents should have in summarizing their measures.
[J]ustices should stay out of the ballot measure process to the maximum extent possible. The separation of powers, respect for the court, and the integrity of the initiative and referendum process require it.
The upshot is that the 100 word description of the ballot measure on a petition is “followed by this warning to prospective signers: ‘This is only a description of the proposed measure … prepared by the sponsor of the measure. It may not include every provision contained in the measure … . You have the right to read or examine the title and text before signing.’” And in fact, a copy of the full measure must be attached to the petition. So who is misled?
Robb finally gets to his point:
The required warning, however, makes it clear that the summary is the proponents putting their best foot forward and is not unbiased or necessarily complete.
This court should take advantage of the off-ramp these challenges offer by clarifying that proponents have a relatively free hand in their 100-word summaries, up to the point of being fundamentally false and misleading.
Unfortunately, Maricopa County Superior Court Judge Christopher Coury ignored this advice, and ruled that the Invest In Ed ballot measure be removed from the ballot. This is not the last word, however. Invest In Ed files appeal after Superior Court knocks education funding measure off ballot.
As for two other ballot measures, it appears Maricopa County Superior Court judges were listening to Robert Robb, incorporating some of his language into their opinions.
The Arizona Capitol Times reports, Marijuana initiative can stay on ballot, court rules:
In a 15-page ruling, Maricopa County Superior Court Judge James Smith, a Gov. Doug Ducey appointee, rejected claims by Arizonans for Responsible Drug Policy that the 100-word summary on the initiative omitted principal provisions and was misleading.
“At 100 words, the summary also cannot include everything,” he wrote. “that is why the full initiative must accompany the petition.”
“At 100 words, the summary also cannot include everything,” he wrote. “that is why the full initiative must accompany the petition.”
And Smith chided foes for suggesting that voters might not understand all the implications of what the measure would do, things like changing laws on advertising and altering laws on driving under the influence of drugs.
“This initiative is plain: It wants to legalize recreational marijuana,” the judge wrote.
“That is the principal provision,” he continued, the key thing that has to be in the description. “It is unlikely electors signing these petitions would be surprised by cascading effects of legalizing a formerly illegal substance.”
[T]he judge stressed that it is not his job to decide whether the initiative is good or bad. And he said many of the objections of foes are “policy issue best left for voters or elected representatives.”
Lisa James, who chairs the group trying to keep the measure off the November ballot, said an appeal is likely.
There is always an appeal.
The Arizona Capitol Times also reports, Voters get choice on criminal punishment, judge rules:
Maricopa County Superior Court Judge Joseph Mikitish, an appointee of former Gov. Jan Brewer, late Friday rejected arguments by Pima County Attorney Barbara LaWall and some crime-victim advocates that the required 100-word description of the measure failed to inform those signing the initiative petition of exactly what it would do. The judge said he found the wording contained nothing that was either fraudulent or created a significant danger of confusion or unfairness, the legal standard by which these statements are measured.
And Mikitish specifically spurned the suggestion that initiative crafters were misleading signers — and would be misleading voters if the measure gets on the November ballot — by saying the additional judicial leeway would apply only to “nondangerous” offenses.
Attorneys for challengers argued that a “reasonable voter” would not understand that the category legally includes things like sex trafficking of a 15-year-old child, conspiracy to commit murder, terrorism, kidnapping and home invasions.
The judge did not dispute that contention. But he said it’s not that simple, saying the term is “open to a wide variety of interpretations.”
“From a layman’s perspective, a ‘dangerous’ offense frankly could apply to almost any crime in the criminal code,” Mikitish wrote. “Conduct is made criminal because it involves the actual or risk of injury, danger, or harm of some person in the community at large.”
Looking at it that way, the judge said, some people might conclude there is no such thing as a “nondangerous offense” while others might conclude it is one that does not involve injury to others.
And there’s something else.
Mikitish said anyone who was unclear about what is and is not included could simply read the actual petition language which, by law, has to be attached to signature sheets. And there, he said, they would have learned that the measure defines “nondangerous” offenses as anything other than first- and second-degree murder, child molestation, rape, and anything defined by the legislature as a dangerous offense.
Nor does Mikitish believe that it matters that the term might seem biased and incomplete. He said the 100-word description does not need to be impartial or provide every detail of every provision.
“A reasonable voter is likely to understand that every proponent of a ballot initiative is attempting to gain his or her support and is likely to highlight the positive aspects of the proposal,” the judge said. “Like in any market, a certain level of puffery must be expected.”
And he said the answer to that is for foes to make their own claims to voters.
There was no immediate response from LaWall who is retiring at the end of the year. But she is likely to seek Arizona Supreme Court review.
There is always an appeal.
Soon there will be three cases in front of the Arizona Supreme Court on the same issue, its 2018 ruling removing the Invest In Ed ballot measure from the ballot based upon the 100 word description of the measure. As Robert Robb says, “This court should take advantage of the off-ramp these challenges offer by clarifying that proponents have a relatively free hand in their 100-word summaries, up to the point of being fundamentally false and misleading.”
Maricopa County Superior Court Judge Christopher Coury was wrong in his opinion removing the Invest In Ed measure from the ballot. Maricopa County Superior Court Judges James Smith and Joseph Mikitish got it right. The Arizona Supreme Court should follow the reasoning of their opinions, and leave it to the voters to decide these ballot measures.
We will soon see.
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