Mike’s Recommended Votes on the 2024 Ballot Props: Yes ONLY on 139

Above is the video taken of myself and Paul Cook of Better Ballot AZ speaking to the Green Valley Democrats about the 2024 ballot props. Very briefly, my own advice is to vote YES on 139, and NO on EVERYTHING else. For a more detailed explanation of why and arguments on the merits of each prop, you’ll need to watch the video!

Paul Cook. my co-presenter has a different assessment of Prop 140, but otherwise, we agree.

As to 400 series ballot questions, these are generally sub-state questions, usually county and school district bonding measures. I don’t have specific recommendations as to these, but I generally urge support for them – they make important infrastructural investments and investments in tomorrow’s workforce, and they are excellent and well-vetted investment opportunities with great tax advantages, so regardless of your party affiliation or wealth, they are very much a good deal for everyone!

If you disagree with my assessments, feel free to leave comments with your arguments.

Here are my notes for the presentation above re each Proposition:

Opening remarks: 

These descriptions include personal opinions that are highly colored by my knowledge of AZ law as a practitioner and observer of Arizona’s legal and political history, if you don’t want that or are offended by that, you should leave now. I think that I am supposed to somehow remain politically neutral in this presentation, but I don’t believe that is possible, nor do I think trying to do so is any service to you, the audience. I believe you are here to listen to informed analysis and opinion – you could read all these Props for yourself if you just wanted the bare facts of what these Props say. I think you want to know what they seek to accomplish, why, and how – and that’s what I’m going try to give you. So please hold harmless anyone other than myself for these opinions, they are not those of any sponsoring organizations or my colleague in this presentation – just me.

I believe you deserve reasoned and justified guidance in this abusively long ballot. I recommend that you vote NO on everything other than Prop 139 as a good rule of thumb. The current very long list of Constitutional Amendments & AZ Statutory referrals by the AZ legislative majority reflect a desperate attempt to entrench conservative power in AZ as they can see their electoral prospects wane. We should not enable them to grab and preserve their power as they pass into minority status.

The only exception to that rule of thumb is Prop 140 (a citizen initiative mind you) which is also a Constitutional Amendment embracing what is in effect an electoral experiment that will place a great deal of discretion in the hands of a few decision-makers to get it work and adjust the course of reforms. IMO it is better to accomplish everything possible with legislation rather than constitutional-level reforms to enable prudent experimentation with the embedded and emergence incentives created by changing various aspects of our electoral system. Probably my position and opinion on Prop 140 contrasts with that of my co-presenter.

Prop 133: NO

Constitutional Amendment, referral.

Needlessly and recklessly embeds the current primary system into our Constitution precluding beneficial experimentation in Arizona around reforming the primary stage of our elections. 

Prop 134:  NO

Constitutional Amendment, referral. Requires signature requirements be met in every legislative district, giving rural districts a veto over the initiative process.

Simply Lawfare by the state leg seeking to further limit the ability of citizens to directly legislate. Why would we be so naive as to limit our own power to bypass that same legislature as our Constitution provides?

Prop 135: NO

Constitutional Amendment, referral. Would restrict AZ Governor’s emergency powers granted by the Constitution other than those events arising from war, fires, or floods.

It gives the legislature the power to declare an end to emergencies arising under all of the following emergencies: epidemics, biological, chemical/toxic substances release, civil unrest, extreme heat, crop losses, all weather events not related to flooding (such as freeze, drought, wind, and other extreme weather events), and terrorism, with a simple majority vote, even over a Governor’s objection or opposition (our Gov. cannot veto a concurrent resolution). Redistributes executive decision-making function severely to the legislature against the principles of divided powers (may therefore be unconstitutional under our vesting clauses)

Endangers Federal Funding which can span years or decades. Enables minority control of Special Sessions by reducing # required to call from 2/3 to 1/3. Disempowers the Governor to act with dispatch and resolve in many emergency situations as intended under our Constitutional design, and allows politicization of certain types of disaster (obviously targets public health emergencies, but accidentally embraces a much wider scope).

The GOP seeks to disempower the Governor because they disapproved of Ducey’s use of the power and thus seek to limit the emergency powers of a Governor of the opposite party by tinkering with our very Constitutional balance of powers for reasons fundamentally based on anti-science views and conspiracy theories.

Prop 136: NO

Constitutional Amendment, referral. Allows lawsuits by ANY plaintiff seeking to challenge the Constitutionality of citizen initiatives even before they make the ballot

. Is a Lawfare measure designed to stretch the resources of citizen initiative efforts and make it much more expensive and technically challenging to put an Initiative measure before the voters. Does NOT provide for equivalent challenge of legislative referrals, several of which are potentially unconstitutional this election season, and can only be challenged post hoc. Simply another bad faith and desperate attack on the Constitutional power of the people to legislate as intended under our Constitutional design.

Prop 137: NO

Constitutional Amendment, referral. Seeks to insulate the current VERY conservative majority on the Arizona benches from electoral accountability.

If you know the legal and political history of this country you will understand that every time a ruling party sees its monopoly on power in a jurisdiction falling apart, it seeks to preserve its influence through the bench they have appointed. This is the last gasp at preserving the fading GOP’s power in Arizona by protecting incumbent judicial appointments from political accountability to a changing electorate. This is an attack on the Constitutional design to preserve conservative power.

Prop 138: NO

Constitutional Amendment, referral. Seeks to permit an entire category of sub-minimum wage labor into our Constitution. 

Have you noticed that just about every retail checkout experience now includes a tipping option? There is a very good reason for that as the rule for the category is “ANY EMPLOYEE WHO CUSTOMARILY AND REGULARLY RECEIVES TIPS OR GRATUITIES FROM PATRONS OR OTHERS”. Any employee receiving tips, or who is tipped out from a pool, can then be paid a rate 25% less than the minimum provided that the employer can prove that the final wage is $2 above minimum wage. That could include anyone in the restaurant or other service business who gets any portion of any tips collected in the entire operation. This requirement is meaningless in practice. How enforced? Note this carefully, too, “COMPLIANCE WITH THIS SECTION IS DETERMINED BY AVERAGING TIPS OR GRATUITIES RECEIVED BY THE EMPLOYEE OVER THE COURSE OF THE EMPLOYER’S PAYROLL PERIOD OR ANY OTHER PERIOD SELECTED BY THE EMPLOYER THAT COMPLIES WITH LAWS ENACTED BY THE LEGISLATURE” This is a loophole the size of the imagination of wage thieves and their cronies in the legislature, who are very creative, indeed. 

This is a Constitutionally empowered invitation to wage theft, meaning that it WILL have ill consequences for MANY of Arizona’s workers for decades before the will emerges to remove this stain from our Constitution. Being marketed VERY deceptively as a PROTECTION for tipped workers: there is NOTHING in the referral protecting these workers as claimed. How dumb do they think we are?

Prop 139: YES

Constitutional Amendment, initiative petition. Seeks to restore abortion rights and access to Arizona women to the status quo ante before Doe was decided and effectively overturned Roe, returning complete discretion on the matter to the states. We should use that discretion to restore the position favored by the vast majority of Arizona’s citizens.

I generally think that citizens should be very wary of changing our Constitution, but SCOTUS has invited and even required us to do so to protect Arizona women from minority extremists seeking to impose their theological predilections upon the rest of us. Most were reasonably satisfied with the graduated balancing of interests between the woman, the state and the interest of the fetus once viable, outside of a very vocal minority seeking to impose specifically Christian (mostly evangelical and Catholic) religious dogma upon all women.

The opponents of this Initiative are very deceptive in their messaging. They seek to characterize it as ‘legalizing abortion up to birth’ – and some will claim ‘even after birth’ if they can get away with it. Not having a criminal statute forbidding 3rd trimester abortion is not the same as ‘legalizing’ it. Third trimester abortion would be regulated by the doctor’s ethical code upon the viability of the fetus when an independent life is held by best medical science to exist. The state can regulate in the interests of the safety and health of the mother and the viable child at that point, but likely need not do so to ensure the best possible medical outcomes for mother and the viable child because of the ethical and legal obligations of doctors to their patients. We can and should trust mothers, families, and doctors with these painful life and death decisions when they do rarely arise in the third trimester (less than 1% of abortions are performed in 3rd trim.) and that’s exactly what Roe and Prop 139 both do. Finally the scurrilous claims of ‘post-birth abortions’ – i.e. infanticide and murder – are utter hogwash and an intentional and knowing lie to horrify some people into opposition. We already have laws to protect newborn children against infanticide and murder.

Prop 140: NO

Constitutional Amendment, citizen initiative.

Possibly contains some solutions to the ills of our current primary system, but is both too rigid in implementing it through the Constitution and creates too much discretion to compensate IMO. Leaves far too much of the design up to good faith experimentation and implementation to the Sec State and legislature which could manipulate the procedure and number of primary candidates to advance to political ends. I support and trust our current Sec State to work in good faith – but I may not like the next one, or the one after that – too much discretion for one person under our Constitution is likely a source of abuse. Flaws of the initiative outweigh the potential benefits IMO. There is clearly an appetite for reform of the electoral system, but we should not lock an experimental design choice into our Constitution. 

Prop 311: NO

Statutory Enactment, legislative referral. Seeks to add a $20 fee to EVERY criminal conviction for a fund to benefit heirs (spouses and children only) of police and first responders. “A “yes” vote shall have the effect of requiring the State of Arizona to pay $250,000, which would be referred to as the State Death Benefit, to the surviving spouse or children of a first responder killed in the line of duty; creating a State Supplemental Benefit Fund to pay the State Death Benefit; increasing criminal punishments for aggravated assaults against peace officers and other first responders; and require a $20 penalty fee be imposed on every criminal conviction to fund the State Supplemental Benefit Fund. The State Death Benefit, $20 penalty fee, and increased criminal punishments for aggravated assaults would expire on January 1, 2033.”

Why a referral for this? Simply to avoid a likely veto on what is at first impression an unobjectionable and desirable law that even has a responsible sunset. So why not? Duplicative of existing benefits and waivers to survivors are already quite adequate amounting to about 500K, in addition to pension and other benefits. As a former prosecutor I can attest that the fees attached to every criminal conviction are already quite substantial, often doubling or more the statutory fines provided by the criminal code. These fall mainly upon misdemeanants for fairly minor crimes. We already have civil remedies for collecting as much as possible from those directly or proximately responsible for first responder deaths. This is just wholly unnecessary. But if you support the enhancement of state benefits to survivors at the expense of those least able to afford the burden rather than socializing it through all our taxes, I guess it only really harms the least among us.

Prop 312: NO

Statutory Enactment, legislative referral. Creates a private right of action against counties and cities by taxpayers in those jurisdictions to claim refunds predicated upon ‘non-enforcement’ of laws that criminalize what are often referred to as ‘lifestyle crimes’ as characteristic of unsheltered and unhoused citizens. Designed to avoid a certain veto by the Governor of a measure designed to force the hands of local governments to enact draconian and constitutionally suspect practices.

A “yes” vote shall have the effect of establishing the right to apply for a refund from a property

owner’s most recent property tax payment up to an amount that matches costs incurred by the property owner to mitigate the effects of a governing authority’s repeated failure to enforce laws and ordinances prohibiting (seems reasonable and this is as far as most people will read) illegal camping, loitering, obstructing public thoroughfares, panhandling, public urination or defecation, public consumption of alcoholic beverages, and possession or use of illegal substances. (But it also includes) If the documented costs exceed the amount of the most recent property tax bill, the property owner would be permitted to apply for a refund from their next property tax payment(s) to cover the balance of the initial claim. Property owners would be eligible annually for refunds until the taxing entity begins enforcing the relevant public nuisance laws.”

What is only apparent upon a close inspection of the referral’s language is that there are essentially no limits to claims other than what is ‘REASONABLY NECESSARY TO MITIGATE THE EFFECTS OF THE POLICY, PATTERN OR PRACTICE OR THE PUBLIC NUISANCE ON THE PROPERTY OWNER’S REAL PROPERTY’. The result could be major commercial property owners and taxpayers claiming enormous credits against current, past and future tax payments based on whatever mitigation they deem ‘reasonable’ provided that a state district judge (mostly very conservative ones) agrees. 

This could severely impact county and city revenues – and that is the intent: to twist the arms of local jurisdictions into taking action on lifestyle crimes.

To a certain extent, this referral is burning down the barn to scare the horses out of the stable, but even after the horses are out, yet still decide to burn down the barn just… because. Why? SCOTUS how now deemed it constitutional to enforce harsh laws against the unhoused despite local governments not providing any reasonable alternatives to outdoor living for the unhoused after this was referred to the ballot. 

To some extent, this seeks to force a solution to a problem that no longer really exists. Almost every local jurisdiction is all too happy to enforce draconian lifestyle laws against the unhoused now that SCOTUS has given them the nod. The reluctance mainly stemmed from concern they would be sued for violating the constitutional rights of the unhoused, not to mention being patently unfair to them. This is no longer a concern anymore as to the Constitutionality of such clear unfairness. SCOTUS doesn’t care.

This was deeply unwise and reckless policy to begin with, designed to coerce local governments into taking actions of dubious constitutionality. Now it is just a stupid and reckless enablement of spurious legal claims in an already overburdened judicial system by wealthy landowners seeking to duck out on their lawful tax obligations because they might win a very valuable judgment with the right judge. It wholly insulates said property owners from attorney’s fees even for unmeritorious or frivolous claims. 

Note this language: 

IN A CAUSE OF ACTION FILED PURSUANT TO THIS PARAGRAPH:

(a) THE CITY, TOWN OR COUNTY SHALL BEAR THE BURDEN OF DEMONSTRATING THAT ITS ACTIONS ARE LAWFUL OR THAT THE AMOUNT OF THE REFUND IS UNREASONABLE.

(b) THE PROPERTY OWNER IS NOT LIABLE TO THE CITY, TOWN OR COUNTY FOR ATTORNEY FEES OR COSTS.

(c) A PREVAILING PROPERTY OWNER SHALL BE AWARDED REASONABLE ATTORNEY FEES AND COSTS.

The house rules are completely rigged for the gambler. Let your legal department roll the dice, maybe the result will come up snake-eyes and the house always insures your bets. This is maybe how Trump managed to bankrupt a casino?

Prop 313: NO

Statutory Enactment, legislative referral. Requires mandatory sentencing of those convicted of sex trafficking of minors to life without the possibility of any early release.

One can read this one easily in its entirety: NOTWITHSTANDING ANY OTHER LAW, IF A PERSON IS CONVICTED OF A CLASS 2 FELONY FOR CHILD SEX TRAFFICKING PURSUANT TO SECTION 13-3212, THE PERSON SHALL BE SENTENCED TO IMPRISONMENT IN THE CUSTODY OF THE STATE DEPARTMENT OF CORRECTIONS FOR NATURAL LIFE. A PERSON WHO IS SENTENCED TO NATURAL LIFE IS NOT ELIGIBLE FOR ANY FORM OF RELEASE.

Its simplicity is also its problem. No discretion is given and no exemptions are drawn for those forced into sex trafficking themselves, as victims frequently are. Judges can already functionally accomplish this end with sentence stacking, and this removes their discretion entirely as to mitigation. Those who pay for sex with a minor could be so charged and imprisoned: they are certainly reprehensible, but there could be mitigation involved and they might be valuable witnesses. Victims themselves are frequently coerced into acting as decoys and enforcers for the traffickers and they are not exempted. This would severely impact the ability of prosecutors to do deals for testimony from victims and witnesses alike. It’s unnecessary, pointlessly cruel, and inhibits making cases against the real bad guys. It is a sop to the QANON types in the MAGA base, nothing more. There are very good reasons that Hobbs would have vetoed, and the law enforcement community is not in support.

Prop 314: NO

Statutory Enactment, legislative referral. The purpose of this Prop is ostensibly to respond to immigration at the state level, supposedly instead of effective action by the Federal Government. Side note: The AZSC has finally tortured the ‘single subject rule’ into a meaningless pretzel, by characterizing this sweeping law into a referral “RELATING TO RESPONSES TO HARMS AT THE BORDER”. So much for a single subject.

Obviously, this was referred because this legislation, and anything like it, would have been vetoed by Hobbs. But the GOP thinks they have stirred up enough animus, fear, and panic to stampede voters into doing something, anything, to ‘fix’ the supposed ‘crisis’ at the border. We have problems, but the riot of lawless barbarians at the gate is mainly a fiction perpetrated by gullible media in search of fear-based clickbait, and cherry-picked anecdotes about a few bad apples.

Here’s the rough outline of what this sweeping proposal would do:

“yes” vote shall have the effect of creating new crimes regarding the following conduct by any

person not lawfully present in the United States: (1) applying for a public benefit by submitting a false document; (2) submitting false information to an employer regarding the person’s authorization to work in the United States; (3) entering Arizona from a foreign country at any location other than a lawful port of entry; (4) refusing to comply with a court order to return to the person’s country of origin or entry. Also creates a new crime of selling fentanyl that causes the death of another person. Requires state courts to issue an order to return to a foreign country if a person is convicted of an illegal entry crime. The order to return must include an authorization allowing state and local law enforcement to transport the person to a port of entry or into federal custody”

Note that these NEW crimes are all already crimes – under Federal law – other than #3 – entering AZ outside a port of entry – which the Federal government has repeatedly declined to criminalize. Duplicating existing criminal laws enacted under the federal criminal law, or seeking to criminalize acts in furtherance of immigration which Congress has declined to do, is known in Con Law as field preclusion and such state laws, under long-standing existing case law interpreting our federal Constitution, is absolutely forbidden to the several states and facially unconstitutional. The AZ legislature is betting that the current SCOTUS is willing to change that and they are happy to expend taxpayer dollars to wage that legal fight. Extending the jurisdiction of state courts over immigration offenses is also currently unconstitutional. The same bet is being made.

This is an attack on the constitutional assignment of the immigration power to the federal government: a bedrock principle underpinning the system of federalism established by our Constitution and long respected in federalism doctrine. All done in service to a panicky GOP seeking to whip up fear and loathing of immigration and immigrants to hold on to political power. I would have doubted SCOTUS would even take cert on such nonsense even a year ago: now I am far from certain. 

If SCOTUS were foolish enough to allow it, it would certainly set off a spiraling of increasing border enforcement costs among the border states merely to push around where illegal crossing is happening without in any way ameliorating the problem, which requires a uniform enforcement regime, diplomatic efforts, and fundamental reforms of our immigration and asylum systems to truly solve our unauthorized immigration issues.

If this were to pass it would immediately have severe consequences regardless of SCOTUS, not only would ruin our national reputation again – like SB1070 – and cause huge economic costs and burdens (AZ law enforcement estimates enacting these ‘reforms’ would cost hundreds of millions per year in unfunded mandates – which are unconstitutional for initiatives under AZ’s constitution, but not so much for legislative referrals, I guess?). For these reasons, it is opposed by both AZ law enforcement (LEOs and prosecutors) and the AZ business community across the board. 

This is Constitutional vandalism in service to the worst instincts of the worst in Americans. It could be the most harmful Proposition of them all this year if passed. And given the parade of horrible we’ve laid out, that’s saying something.

Prop 315: NO

Statutory Enactment, legislative referral. This would ask voters to block AZ agencies from creating any rule that would increase estimated regulatory costs by more than $500k over 5 years. Such rules would have to be enacted by the state legislature. This is Loper Bright (eliminating Chevron deference) for state regulatory agencies except instead of the courts clawing executive regulatory power to itself, it is the legislature clawing that power to itself out of the executive. You might anticipate the very good reasons that Hobbs would have certainly vetoed this dog.

Prop 315 will do what Loper Bright is doing to our federal executive agencies: it will kneecap the ability of state government to respond quickly and with expertise to problems impacting the health, welfare, and economic rights of our citizens (such as regulating ESA vouchers, or public health and environmental regulations), and it will harm the most vulnerable among us by restricting reasonable regulation of the market to reduce harm to consumers and stakeholders (such as elder abuse in care homes or abuse of behavioral health patients, or scams and abuses in a swift-moving economy). 

Most importantly 315 upends the Constitutional balance of power under our State Constitution and is likely therefore violative of our State Constitutional separation of powers. Whether the AZSC would stand against this power grab by the legislature from a Governor of the other party is really an open question that I would rather not have an answer to. Of all the Props, this one is perhaps the biggest power grab within our state Constitutional order and the one most prone to unforeseen, far-reaching, and unanticipated abuses and neglects by our legislature and real harm to potentially every Arizona citizen.