Wednesday, December 5, 2012

ARIZONA SUPREME COURT: Prop. 204 Petitions Met "Substantial Compliance" Test, And "Fatal" Test Would Be Too Tough

The Arizona Supreme Court today released its extended opinion on the summer lawsuit drama involving the petitions for the initiative that would have raised the state sales tax by 1% to help fund (primarily) education.  The Justices reaffirmed that it must "liberally construe initiative requirements," and refused to accept Secretary of State Ken Bennett's proposed test that any substantive difference between the versions were "fatal".

However, the Justices defended Bennett's controversial position (he was criticized by the initial judge) to not accept the petitions, and they declined to grant the Quality Education and Jobs Committee attorney's fees.  The Committee had submitted (to the Secretary of State's Office) an electronic copy of the initiative that differed from the paper copies that they had submitted and circulated.

"Although we recognize the pressures to speed
election cases through the courts, we disagree that the defense
interposed was inconsequential or wasted judicial resources.
This case presented an unusual circumstance not of the
Secretary’s making. He was placed in a difficult position by
the Committee’s filing of conflicting versions of its
initiative. The Secretary proceeded properly in bringing this
issue to the court." (¶ 20)
Courts typically lean towards allowing voters to having a say, whether it is regarding candidate's petitions or, especially, initiative petitions.  This opinion strongly reaffirms that:

 Here, by contrast, the parties circulated the intended
version so that all signers had the opportunity to review it
before signing a petition.  ¶13 Most importantly, we conclude that our current test
strikes the appropriate balance between protecting our citizens’
right to initiate laws and the integrity of the election
process. For these reasons, we are not persuaded that we should
change our standard for reviewing initiatives.
¶14 Under the substantial compliance standard, we conclude
(and the parties agree) that the Committee’s filing of differing
versions of the initiative was a clerical error, done without
any intent to defraud or deceive. And in the circumstances of
this case, there was no significant danger that voters would be
confused or deceived by the discrepancy between the paper and CD
versions; the voters who signed the petitions had the
opportunity, if they wished to take it, to study the correct
provision. Moreover, the Secretary of State’s Office received
and had on file the complete copy of the initiative circulated. (¶¶ 12-14, citations omitted)

Proposition 204 was defeated on November 6 by approximately 30 percentage points, and the one percent temporary sales tax increase approved in 2010 is set to expire in 2013.

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