While you were distracted by the long Thanksgiving Day holiday weekend, the Arizona Supreme Court finally issued its opinion in the “Outlaw Dirty Money” initiative case. Arizona Supreme Court ruling supports legal tactic used to keep initiatives off ballot:

The Arizona Supreme Court has upheld the constitutionality of a legal tactic used by those seeking to keep voter-proposed laws off the ballot. [“The only issues we must decide are the constitutionality of §19-118(C) and the propriety of the trial court’s exclusion of the non-appearing subpoenaed circulators’ petition signatures.”]


The Court’s opinion is narrowly tailored. “As our decision does not turn on whether the Committee strictly complied with § 19-118(C), we need not determine the constitutionality of the strict compliance requirement of § 19-102.01(A).” The “strict compliance” constitutional challenge is left to another day.

In a unanimous ruling Wednesday, the justices reaffirmed the right of people to craft initiatives and seek to have them approved.

“And we are reluctant to impede such civic efforts,” they said.

But Justice John Lopez, writing for the court, said there is nothing unduly burdensome about requiring paid circulators to register and provide an address where they can be subpoenaed. Lopez said throwing out the signatures collected by those who don’t show up in court does not impair the constitutional rights of people to propose their own laws.

This is fundamentally anti-democratic, and wrongly decided. The valid signatures of voters who legally signed the petition in good faith are disenfranchised if the circulator cannot be located or fails to appear in court, for any reason. This legal tactic invalidates the otherwise valid signatures of voters given in good faith through no fault of their own.

Wednesday’s ruling explains the decision the justices made months ago to block a vote on the “Outlaw Dirty Money” proposal. But the implications go deeper, providing a legal road map for others who want to challenge ballot measures.

“It’s going to be almost impossible for anybody who doesn’t have incredibly deep pockets to carry a petition using paid circulators,” said Terry Goddard who spearheaded the measure the Supreme Court knocked off the ballot.

* * *

Challengers issued subpoenas for 15 circulators, leaving them with a security guard at an office building used by a company that hired the circulators. When none of the circulators appeared at trial, the judge disqualified the 8,824 signatures they collected.

The initiative drive came up short of the 225,962 valid signatures needed to qualify for the ballot.

Attorney Kim Demarchi, representing the initiative drive, challenged the automatic disqualification of the signatures as unconstitutional. She argued that a circulator’s signatures should be tossed only when there is a “valid objection” to the circulator or the “need for a circulator’s testimony.”

Lopez acknowledged it took a lot of work to gather the signatures.

“We do not discount the civic activism or the resources devoted to this campaign,” he wrote.

But Lopez said the right of people to propose their own laws and constitutional amendments “is, and must be, subject to reasonable regulation of the initiative process.”

And in this case, he said, requiring circulators to appear in court and tossing the signatures they gathered if they don’t show up it fits within what can be regulated.

“The statute represents a reasonable means of fostering transparency, facilitating the judicial fact-finding process, including compliance with valid compulsory process, and mitigating the threat or fraud or other wrongdoing infecting the petition process,” Lopez wrote. “It furthers the constitutional purpose of the initiative process by ensuring the integrity of signature gathering by reasonable means.”

The court is applying a minimum rationality standard of review here –“A statute regulating a provision of our constitution is permissible if it “does not unreasonably hinder or restrict the constitutional provision and if the [statute] reasonably supplements the constitutional purpose” of the provision” — which arguably is the wrong standard of review, it should be strict scrutiny, because the right of Arizona citizens to initiative, referendum and recall is a fundamental constitutional right expressly retained by Arizona citizens in the Arizona Constitution.

Unfortunately, there are a series of Arizona Supreme Court decisions applying the minimum rationality standard of review to initiatives. Once having wrongly decided the standard of review, the court is consistent in repeating its error.

Terry Goddard, however, suggested the justices got it backwards.

He said the prime concern should be to determine, in whatever way possible, whether an individual’s signature is valid. Goddard said what the court has ruled is that otherwise valid signatures can be disqualified solely because the person who collected them didn’t show up in court.

Goddard is correct. This is exactly what the court held.

That gets to the issue of the additional financial burden.

“You not only have to get valid signatures but then you have to keep the circulator around and have them appear at a hearing or all their signatures are going to be determined invalid,” said Goddard, a former state attorney general. “I think that undercuts our citizens’ right to petition our government, which is guaranteed in the constitution.”

The justices also rejected the contention that the subpoenas could not be enforced because they were not properly served — in his case being left with a security guard.

Lopez said requiring subpoenas to be served in person or at a specific office address “would encourage a circulator to register a statutory service address beyond the reach of a process server.” That, said Lopez, would remove the deterrence of circulators to commit fraud because they could never be called to court to account for their actions.

This gobbledygook logic makes absolutely no sense. Corporations are required to have a statutory agent for service of process. Service on the statutory agent is good service of process. Why not make the petition circulator company’s statutory agent for service of process the statutory agent for the employees that it hires and require service of process on the petition circulator company’s statutory agent? It is nonsensical to argue that service in person or at a specific office address “would encourage a circulator to register a statutory service address beyond the reach of a process server.” The petition circulator company is always a named defendant, and not “beyond the reach of a process server.”

Goddard said [this] is contrary to court rules that require reasonable efforts be made to ensure people know they have been subpoenaed.

Goddard is correct.

This is a bad decision, and the only way to correct it is to amend the statute to remove the voter suppression tactics enacted by the GOP dominated legislature. This will take a Democratic controlled state legislature. You have two years to make it happen.

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