A provision in the Arizona Constitution requires petition signature gatherers to sign an affidavit stating the petition was "signed in the presence of the affiant," and that requirement would be impossible to satisfy through electronic means, the Goldwater Institute said in an amicus brief Tuesday.
The brief was submitted in support of state House Speaker Rusty Bowers, R-Mesa, and Senate President Karen Fann, R-Prescott, who intervened in the case that four political action committees brought against Democratic Secretary of State Katie Hobbs. 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.
The PACs asked the court to direct Hobbs to allow them to use E-Qual, the state's online signature gathering platform that is available to political candidates but not initiative petitions, because the virus has hampered their ability to collect in-person signatures. The PACs have argued that shutting them out from E-Qual violated their constitutional rights, and Hobbs said she would not oppose their requests.
But the institute said that initiative petitions are distinct from political candidates and should be subject to more stringent restrictions. The public can vote a candidate out of office, but a constitutional amendment voters approved in 1998, the Voter Protection Act, bars lawmakers from repealing approved initiative measures and requires a three-fourths vote from the state Legislature to amend them, the institute said.
"It therefore makes sense to impose strict rules on initiatives before the fact, and to impose more stringent requirements on initiative petitions than on candidate petitions," the brief said.
Timothy Sandefur, the vice president for litigation at the institute, told Law360 on Wednesday that Arizona is the only state that has that strong of a protection for initiative petitions enshrined in its constitution.
"We believe that it makes sense to have stricter rules to gather signatures for initiative petitions than candidates because, thanks to the Voter Protection Act, initiatives are practically irrepealable and unalterable," Sandefur said.
One of the petitions supported by the PACs, the Smart and Safe Arizona Act, would impose a 16% tax on sales of adult-use marijuana and mainly use the revenue to fund colleges, public safety departments and infrastructure.
Another petition, the Invest in Education Act, would impose a 3.5% tax surcharge on individuals with more than $250,000 in annual income, or more than $500,000 for joint filers, and use the revenue for school funds. Arizona's highest tax bracket currently imposes a 4.5% tax on individuals with more than $159,000 in income, or more than $318,000 for joint filers.
State Attorney General Mark Brnovich, a Republican, has also intervened in the case, and must submit a brief by Friday. Sandefur said that although Brnovich and the lawmakers generally believe the PACs' request is unconstitutional, the institute doesn't agree with Brnovich's memo to the court that said Republican Gov. Doug Ducey could issue an executive order permitting online signature gathering.
In their brief, the institute said that two state laws bar ballot initiatives from gathering online signatures, and that the governor does not have the authority to suspend the statutes during nonwar emergencies. Instead, during emergencies such as the spread of COVID-19, Ducey's powers are limited to amending or rescinding orders, rules and regulations, the brief said.
The institute asked the justices not to alter the state's election methods during the pandemic, saying such a modification would best be left for a time when the changes could be more thoroughly vetted.
"Whatever the merits of allowing electronic signatures for initiative campaigns, it is deeply imprudent to ask the judiciary (or the governor) to rewrite election laws, especially in … a crisis," the brief said.
Roopali H. Desai of Coppersmith Brockelman PLC, who represents the PACs, did not respond to a request for comment Wednesday. She previously told Law360 that allowing the PACs to use E-Qual would be the only way to protect their constitutional rights and the public health during the pandemic.
Counsel for the lawmakers was unavailable to comment on the brief Wednesday.
Hobbs' spokeswoman Sophia Solis told Law360 on Wednesday that she could not respond to the amicus brief, but referred back to Hobbs' statement saying she would not oppose the PACs' request.
Brnovich spokeswoman Katie Conner and Ducey spokesman Ben Petersen did not respond to questions Wednesday.
The Goldwater Institute is represented by its own Timothy Sandefur and Christina Sandefur.
Bowers and Fann are represented by David J. Cantelme and D. Aaron Brown of Cantelme & Brown PLC.
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 Gregrey G. Jernigan.
The case is Arizonans for Second Chances et al. v. Katie Hobbs, case number CV-20-0098-SA, in the Arizona Supreme Court.
--Editing by Neil Cohen.
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