By Abraham Gross

Law360 (April 21, 2020, 7:23 PM EDT) -- Arizona's secretary of state has urged the state's justices to allow online signatures to back four ballot measures amid the coronavirus pandemic, whereas the state attorney general insists Arizona's constitution requires a signature gatherers' affidavit that can't be achieved electronically.

In response briefs filed Friday, Attorney General Mark Brnovich, a Republican, told the state Supreme Court that the constitutional requirement for petition signature gatherers to sign an affidavit would be impossible to satisfy through electronic means, while Democratic Secretary of State Katie Hobbs said e-signatures would protect public health.

Brnovich intervened in the case that four political action committees brought against Hobbs to use E-Qual, the state's online signature-gathering platform, which is available to political candidates but not initiative petition drives. A proposal to legalize and tax adult-use cannabis and a proposed income surcharge on high earners are among the four measures supported by the PACs.

In his response brief, Brnovich said that online signatures gathered through E-Qual lacked a valid affidavit stating the petition was "signed in the presence of the affiant" as required by Article IV of the state constitution.

"In unambiguous terms, it mandates in-person witnessing of signing initiative petitions," Brnovich said of the constitutional provision. "Thus, far from mandating inclusion of initiative petitions in the E-Qual system, Article IV actually mandates their exclusion."

The electronic platform cannot comply with the in-person mandate if it eliminates the requirement, Brnovich said, adding that the mandate also resolves the PACs' other constitutional arguments as a result.

"The Arizona Constitution obviously cannot violate itself. The specific mandate that all initiative petitions be signed in person thus trumps any contention that the far more general due process, equal protection and free speech clauses require initiative petitions be included in the E-Qual system," Brnovich said.

Addressing the PACs' claim that the in-person requirement posed a public health risk, Brnovich said the state had an interest in protecting the integrity of the voting process. He also noted that the declared isolation measures were in place for only a portion of the period for collecting signatures and that the PACs could still raise awareness to collect signatures that fulfill the in-person requirement after the public health measures ended.

"Although Arizona statutory and constitutional law requires in-person execution of the signatures, that hardly means that [the PACs] cannot be making productive use of this time to try to secure interest/support from voters," Brnovich said.

In a separate notice, Brnovich told the justices that a district court had dismissed the PACs' separate federal lawsuit involving similar issues. The district court said that it lacked jurisdiction to settle an issue regarding state law and that the PACs failed to show their claims that the signature-writing process violated the First and Fourteenth Amendments of the U.S. Constitution were likely to succeed, according to court documents.

Brnovich withdrew his prior argument that Republican Gov. Doug Ducey could issue an executive order permitting online signature gathering, noting Ducey's responses in an April 7 news conference seemed to decline such relief.
 
Speaking about gathering signatures, Ducey said: "You can still use the phone, you can use social media. If people want to give a signature, they're able to go on the candidate's or initiative's webpage, download the form, sign it and mail it in. I encourage them to do that."

In a separate response brief, Hobbs said that as a result of the extraordinary circumstances and health risks posed by in-person interactions amid the COVID-19 pandemic, she would not oppose the PACs' request to collect signatures electronically if it was granted by the justices.

"The secretary believes that such relief would further the public interest by protecting public health while facilitating the continuity of democratic processes — here, Arizonans' constitutional right to legislate by initiative," Hobbs said in her brief.

Hobbs asked the court that any court order stipulate certain provisions, including limitations to reduce the administrative burdens on her staff.

Roopali H. Desai, who represents the PACs, told Law360 that the signature requirement was a provision involving verification, which the electronic signature could fulfill.

"We disagree with the attorney general's reading of that constitutional reading, which goes directly to the issue of verification," she said. "The attorney general kind of glosses over the general purpose, but more than that reads into the statute language that doesn't exist."

Desai also disagreed with Ducey's characterization of the signature process, saying that paper signature documents were not available online for download due to state requirements and that the in-person requirement posed health risks to staff members processing the documents in addition to the public overall.

"I think that the governor is, unfortunately, ill informed," Desai said. "I think that it is unfortunate that while on the one hand the governor is asking people to stay healthy and stay home, on the other hand he is asking people to take health risks to exercise their constitutional rights."

Katie Conner, a spokeswoman for Brnovich, said it was up to the state Legislature rather than the courts or secretary of state to expand E-Qual access.

"While we all share a common concern for public safety during this pandemic, plaintiffs and the secretary of state shouldn't be using the health crisis to disregard our state constitution," Conner said in an email to Law360. "We defend the law. Someone has to."

Hobbs' spokeswoman, Sophia Solis, referred Law360 back to Hobbs' statement saying she would not oppose the PACs' request.

Ducey's office did not immediately respond to requests for comment.

Brnovich is represented by Joseph A. Kanefield, Brunn W. Roysden III, Drew Curtis Ensign, Jennifer Wright, Anthony R. Napolitano and Robert J. Makar of the Arizona Attorney General's Office.

The PACs are represented by Roopali H. Desai and D. Andrew Gaona of Coppersmith Brockelman PLC.

Hobbs is represented by Roy Herrera and Daniel Arellano of Ballard Spahr LLP.

The case is Arizonans for Second Chances et al. v. Katie Hobbs, case number CV-20-0098-SA, in the Arizona Supreme Court.

--Additional reporting by Paul Williams. Editing by Robert Rudinger.

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