Frank Antenori and Ron Gould are desperate for media attention

Posted by AzBlueMeanie:

When I opened the Arizona Daily Star this morning, I was treated to a Howard Fischer report on how former state legislators Frank Antenori and Ron Gould are planning a referendum drive should the Arizona legislature enact Governor Jan Brewer's Medicaid (AHCCCS) restoration plan. 2 want Medicaid issue up to voters:

Frank Antenori, who represented Tucson, said Tuesday he already has written commitments from 500 GOP precinct committeemen to gather signatures this summer to refer the issue to the ballot if the proposal by Gov. Jan Brewer is approved by the Legislature. He and Ron Gould of Lake Havasu City need just 86,405 valid signatures within 90 days of the end of the session — whenever that happens — to force the issue to a public vote.

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House Speaker Andy Tobin said Tuesday he has given up on his own bid to make approval of Brewer's plan contingent on voter approval at a special election. Tobin said he cannot line up support in his chamber.

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Antenori said, though, it should be no problem finding enough Arizonans to sign referendum petitions — especially if the measure is sold as a way to kill "Obamacare.''

Just getting the signatures would be a setback for Brewer. The Arizona Constitution says any measure referred to the ballot cannot take effect until voters get a chance to either ratify or reject what lawmakers have approved.

The earliest that could happen is the 2014 general election. Antenori said that delay works in his favor.

Brewer said she's not concerned.

"I don't think it's going to get referred,'' she said. "We're to get it passed and we're going to do what's right for Arizona.''
But the governor already is preparing a legal challenge to cut off any referral at the knees.

Press aide Matthew Benson said while questions of policy can be referred to the ballot, the Arizona Constitution bars voter veto of any program "for the support and maintenance of the departments of the state government and state institutions.'' [Arizona Constitution, Article 4, Part 1, Section 1, paragraph 3 (pertaining to referendums).] That is because of the fact that a referendum holds up enactment of the law until the next general election.

Benson said the Arizona Court of Appeals concluded in a 1992 ruling that exemption is broad, applying not only to state spending but also revenue measures needed to support government operations. And he said that includes the $240 million assessment on hospitals that would pay for the AHCCCS expansion.

"It's part of the budget,'' Benson said, making it off-limits to being referred to the ballot.

The Arizona Capitol Times (subscription required) adds a little more detail. Former
senators eying Medicaid referendum that could delay any expansion:

[T]he Ninth Floor believes it has found a legal shield to any potential referendum. Benson cited a 1992 Arizona Court of Appeals case in which the court ruled that a half-cent sales tax increase approved by the Greenlee County Board of Supervisors was not subject to a referendum due to a provision in the Arizona Constitution exempting legislation passed “to provide appropriations for the support and maintenance of the Departments of the State and of State institutions.”

The court ruled that a tax measure is not subject to a referendum because it was passed in support of an appropriation.

“Appropriations are customarily thought of as bills allocating money to state departments and institutions for their operating expenses. Support is a broader term embracing both the acquisition and allocation of funds. Support cannot occur without money,” the ruling read.

Something else occurred in 1992 — the enactment of Prop. 108, requiring a two-thirds super-majority vote to enact any increase in taxes, or to reduce or eliminate any tax exemptions or credits. Arizona Constitution, Article IX, Section 22.

These constitutional provisions must be read in harmony together. A couple of rules of construction to keep in mind:

Provisions of the Constitution are mutually consistent. There are no internal logical contradictions, except that a provision of an amendment inconsistent with a previous provision supersedes that provision.

None of the words are without force and effect, except those superseded by amendments. Except for the statement of purpose in the preamble, every word was intended by the Framers to be legally normative, and not just advisory, declaratory, aspirational, or exhortatory. Words should be interpreted to give them some effect.

Appropriations bills generally are not subject to a referendum, but a related measure is subject to a referendum. Arizona's "single subject" rule for appropriations, Arizona Constitution, Article 4, Section 20, requires appropriations to be made by separate bills, each
embracing but one subject.

These constitutional provisions have already been identifed as the basis for a legal challenge to Governor Brewer's plan by opponents.

Paul Bender, an Arizona State University law professor and expert on the Arizona Constitution, explained to the Arizona Capitol Times that he disagreed with the Governor’s Office’s analysis of the Greenlee County ruling:

Bender noted that the Court of Appeals said a sales tax passed to fund “existing county programs” was not subject to a referendum. Brewer’s plan, however, would create new coverage, in addition to funding preexisting AHCCCS coverage.

Though the hospital tax Brewer wants to implement to pay for the state’s share of expansion wouldn’t be subject to a referendum, Bender said, the actual expansion of AHCCCS coverage would be. Bender said he didn’t think that the entire program would be exempted on the grounds that it would also pay for a preexisting AHCCCS program.

“The new program part of it is clearly referable,” Bender said. “By adding … a tax to a program expansion, you can’t immunize the program expansion from a referendum.”

I would argue there is a case to be made that the hospital assessment (bed tax) is also subject to a referendum if it is enacted without the requisite two-thirds super-majority vote. Arizona Constitution, Article IX, Section 22. This constitutional amendment was enacted after the Greenlee County ruling, and affects the analysis. The Medicaid (AHCCCS) plan and the hospital assessment (bed tax) could be adopted as separate measures, forcing Antenori and Gould to collect signatures for separate referendum questions.

Another critical issue identified in the Arizona Capitol Times report:

If the former senators are successful, it could throw AHCCCS into disarray. The agency’s current agreement with the federal government, which provides significant federal funding, expires at the end of 2013. The U.S. Centers for Medicare and Medicaid Services (CMS) has indicated that it won’t renew the agreement, under which AHCCCS has frozen enrollment for childless adults.

That could leave AHCCCS without the ability to either continue its status quo or expand until after the 2014 election. The state could be left either funding childless adult coverage itself at the cost of several hundred million dollars, or temporarily eliminating the coverage altogether.

There is good reason to believe that Antenori and Gould are just desperate for media attention and do not have the resources to collect the requisite number of signatures for a refrendum.

In order to refer the Medicaid expansion to the ballot, Antenori and Gould will have to collect 86,405 signatures in the first 90 days after the Legislature adjourns.

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Collecting signatures for ballot measures is an expensive proposition. But Antenori and Gould believe they can do it with unpaid volunteers.

This is rarer than snow in June in Arizona. But it's all academic until Governor Brewer's Medicaid (AHCCCS) restoration plan is actually enacted by the legislature.