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E-Signature Bar Doesn't Limit Free Speech, Ariz. Justices Say

By Daniel Tay · Sep 4, 2020, 8:11 PM EDT

Disallowing online signatures for ballot measures, including two tax petitions, amid the novel coronavirus pandemic does not limit free speech, the Arizona Supreme Court said Friday, explaining a May decision denying requests to allow online signature gathering.

The Arizona Constitution's requirements, by its terms, that signatures for ballot initiatives must be collected on physical sheets of paper do not violate initiative supporters' rights to free speech or due process under both the state and U.S. Constitution, Justice Andrew Gould said in writing for the majority. According to the majority, the social distancing in response to the pandemic does not bar a "reasonably diligent" initiative proponent from gaining ballot access, concluding that the in-person requirement of Article 4, Section 1(9) of the state constitution does not infringe on initiative supporters' rights to converse with voters.

"Any limitations on such interactive communications are caused by the virus, and not Section 1(9)," the majority said.

The majority added that even if Section 1(9)'s requirement imposed a severe burden on free speech, the requirement would survive strict scrutiny because it advances the state's compelling interest in protecting elections' integrity.

Four political action committees lodged a complaint against Secretary of State Katie Hobbs, a Democrat, in April. Hobbs said then that she would not argue with the committees. State Attorney General Mark Brnovich, a Republican, intervened in the case to argue that e-signatures would not meet the constitutional requirement for petition signature gatherers to sign an affidavit stating the petition was "signed in the presence of the affiant."

Since the court's order in May, three of the four committees have managed to collect enough signatures to be placed on the ballot, provided the signatures were deemed valid. One backer for a petition regarding private school vouchers, Save Our Schools Arizona, suspended its campaign after the ruling rather than allow its all-volunteer staff to risk health. Invest in Education as well as Smart and Safe Arizona, the two tax petitions, submitted sufficient signatures deemed valid to appear on the ballot. The last initiative was ruled not to have enough valid signatures.

The Invest in Education initiative would ask voters to impose a 3.5% income tax surcharge on individuals with more than $250,000 in annual income, or more than $500,000 for joint filers. 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.

The Invest in Education initiative was initially barred from the ballot by a lower court, which held the measure's summary on the initiative petitions signed by voters was misleading, but the state Supreme Court in August reversed and reinstated the measure.

The Supreme Court also affirmed a lower court's ruling that the Smart and Safe Arizona Act qualified for the ballot because the measure's summary on the initiative petitions signed by voters wasn't misleading. The initiative would allow adults 21 and older to possess up to an ounce of recreational marijuana, and impose a 16% excise tax on its sales, in addition to the state's transaction privilege tax, which acts as a sales tax.

The majority noted that courts have been split over whether ballot access restrictions constitute severe burdens on free speech during the pandemic. Cases in which courts decided restrictions were a severe burden were distinguishable from the case at issue because in those cases, the ballot measure supporters showed they had been reasonably diligent or that states' pandemic restrictions, like stay-at-home orders, limited the ability to collect signatures through a large part of the signature gathering period.

Vice Chief Justice Ann A. Scott Timmer dissented, saying that strict enforcement of the state constitution's in-person requirements and Republican Gov. Doug Ducey's stay-home orders together limited voting and associational rights in violation of the U.S. Constitution.

"At a time when Arizonans were acclimating to wearing masks, staying at least six feet away from others and all but dousing themselves in hand sanitizer, only the hardiest permitted a stranger to approach to discuss an initiative petition or obtain a signature," Vice Chief Justice Timmer said.

Vice Chief Justice Timmer added that under strict scrutiny review, Hobbs had not shown the in-person requirements were narrowly tailored to advance the interest of safeguarding the election's integrity.

"The fact that less restrictive alternatives to the wet-signature requirement existed demonstrates that the requirement, although likely narrowly drawn when created, was not narrowly drawn to advance the state's interest in pandemic circumstances," Vice Chief Justice Timmer said.

The Attorney General's Office did not respond to requests for comment.

Counsel for Invest in Education and Smart and Safe Arizona did not 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 Abraham Gross, Asha Glover and Paul Williams. Editing by Joyce Laskowski. 

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