Arizona Republicans set up a ballot measure to squash future ballot measures

Organizers for a ballot initiative that would amend the Arizona Constitution to protect abortion rights set up outside the Arizona Capitol on April 9, 2024, shortly after the Arizona Supreme Court ruled that an 1864 near-total abortion ban is enforceable. Photo by Jerod MacDonald-Evoy | Arizona Mirror

An initiative to protect abortion access in Arizona has gathered more signatures than it needs to make the November ballot. If it passes, it wouldn’t be the first time Arizonans have used direct democracy to enshrine rights directly relevant to women. A popular initiative gave Arizona women the right to vote in 1912, years before the 19th Amendment brought suffragists nationwide victory.

Getting a measure on the ballot is expensive and onerous, says Dawn Penich, a spokesperson for Arizona for Abortion Access, the organization behind this year’s measure. But her group is determined to champion it to restore abortion rights and overcome restrictions put in place by Arizona Republicans. They’ve raised over $12 million to recruit hundreds of volunteers, train them, and send them out to canvas in high-traffic areas under the blazing desert sun. Their goal: get at least 383,923 Arizonans who are registered to vote to sign a petition so it qualifies for the ballot.

This article was originally published by Bolts, which covers local politics and policy around voting rights and criminal justice, and is republished with permission.

“It is grueling work,” Penich said. “I’m out in the field, on the streets, at trailheads with our volunteers many days a week.”

“It’s folks who are oftentimes retired,” she added of the canvassers who are securing signatures. “It’s folks who are fitting this in before or after their full-time jobs. None of this is easy.”

The GOP is now pushing a separate constitutional amendment that would multiply those hurdles, and make future citizen-led initiatives prohibitively difficult.

Republican lawmakers have placed a measure on the November ballot that would severely restrict direct democracy in Arizona by imposing strict geographic requirements on where organizers must gather signatures. Arizonans will vote on it this fall, likely alongside the abortion measure.

Penich warns that the amendment would make organizing like hers tougher going forward. “This is an effort to make it harder for regular people to engage in the process,” she told Bolts.

Right now, petitioners need to pass just one statewide test to qualify a measure: They need to gather more signatures than a minimum number defined in the state constitution, regardless of where the signatures come from. (The threshold is 10 or 15 percent of all votes cast in the most recent governor’s race, depending on whether the proposal would amend the constitution.)

If the new measure passes, it would create 30 separate tests instead: Initiatives would need to meet that same threshold of signatures in each and every one of Arizona’s 30 legislative districts.

This would require tremendous logistical feats from any citizen-led effort. Canvassers would need to dramatically scale up their presence in the most remote parts of Arizona, unable to rely on high-traffic areas and denser population centers.

The ruling minority doesn’t want to share the power with the public.

– Pinny Sheoran, president of the League of Women’s Voters of Arizona

Arizonans who have experience working on signature-gathering told Bolts that this requirement could prove insurmountable to them given the resources and capacity it would call for.

“This is nothing but a backdoor way to shut down the initiative process,” said Jim Barton, an election law attorney who has been involved in numerous legal fights over the rules of initiatives in Arizona.

Proponents of this change say it is necessary to ensure rural Arizonans have a voice in the process; they say citizen-led initiatives are typically pushed by voters in Maricopa and Pima Counties, the state’s two most populous.

“It shows up on the ballot with very little buy-in from other parts of the state,” Republican state Senator J.D. Mesnard, who sponsored the amendment, Senate Concurrent Resolution 1015, told Bolts.

SCR 1015 passed both chambers of the legislature on party-line votes, with Republicans in support.

Mesnard added that he wants to reel in out-of-state groups that have zeroed in on Arizona as a key battleground state. “We’ve been seeing an increased use of the initiative process by outside organizations that don’t even exist in Arizona coming in and planting themselves in Maricopa County and gathering all the signatures they need,” Mesnard said.

Sarah Gonski, an Arizona-based lawyer who has represented Democrats in election litigation, predicts that the changes will have the opposite effect. Between the operational expenses of recruiting and training canvassers across every part of the state, and the legal expenses needed to defend the signatures in court, she told Bolts that only those with deep pockets could qualify a ballot initiative.

“Initiatives are going to be even more expensive. That means as a tool, it is even more inaccessible to actual citizens of Arizona,” said Gonski, who also teaches election law at ASU and works as a policy advisor for the Institute for Responsive Government. “It pretty much boxes out grassroots Arizona groups and ensures only well-monied special interests can come in and campaign.”

The geographic requirements in SCR 1015 would force organizers to deploy extensive resources to find thousands of supporters in regions that may be politically hostile to their agenda; while Arizona overall is closely divided, some areas skew very blue or red. (Joe Biden and Donald Trump each received more than 70 percent in at least one legislative district in the last presidential election.)

Even when organizers believe they’ve collected enough signatures, their opponents would simply have to show that they missed the mark in just one of the state’s 30 districts for the entire initiative to be scrapped. This would open more opportunities for legal mischief, and multiply courtroom battles.

Pinny Sheoran, president of the League of Women’s Voters of Arizona, which opposes the proposed changes to the initiative process, agrees that these changes would lock out most Arizonans from a process in which they’ve grown used to participating.

“The ruling minority doesn’t want to share the power with the public,” Sheoran said.

The left doesn’t have a monopoly on popular initiatives, but in Arizona, where the state government has been run by Republicans for much of the last few decades, the direct democracy process has been a rare tool progressives can use to champion some of their most popular priorities.

Voters approved a minimum wage increase in 2016, they legalized recreational marijuana in 2020, and they approved a hike in teachers’ salaries and education funding through raising taxes on top earners in 2020. (That last measure was eventually struck down by state courts.)

All these measures were initiated by Arizona organizations looking to circumvent the legislature. Other citizen-led initiatives have fueled reforms to the political system. A 1998 initiative set up public campaign funding with an eye to diminishing the power of special interests. A ballot measure in 2000 stopped gerrymandering by setting up an independent redistricting commission. A 2022 measure required groups making independent expenditures to disclose the identity of major donors.

Facing this string of victorious progressive campaigns, Republican politicians began chipping away at Arizonans’ right to put measures on the ballot.

In 2017, a law adopted by the GOP over Democratic objections made it easier for signatures to be challenged in court. The law set a higher standard of “strict compliance” that a voter’s signature must meet when compared to voter registration files. This has made it more likely for signatures to be tossed or declared invalid based on technicalities like a voter using an shortened version of their name.

It is a minority veto. It’s allowing people from one part of the state to veto something the majority of the state cares enough about to put on the ballot.

– Sarah Gonski, Democratic election attorney

Republicans said the requirement would protect against fraud, but Penich says the law unleashed a deluge of pricey legal battles to strike signatures on formatting issues, misspellings, illegible characters and other minor details on petitions. “What most people would consider a really ridiculous detail could invalidate rows of signatures,” Penich said. “For instance, if somebody’s signature… touches the signature below it, that could be grounds to invalidate both signatures.”

As a result of the tightened standards, campaigns have to set aside more funds to defend the petitions in court, and they also have to invest more time in training circulators to minimize the number of signatures that may end up being tossed.

“Not only is it 110 degrees, not only is it after a full day of work while their families are at home,” Penich said, “we also have to be watching like a hawk while they sign that they stay inside the box, that they don’t leave out the date.”

Mesnard, the state senator behind SCR 1015, also supported the strict compliance law back in 2017.

“If you are bypassing the normal process, it should be pretty strict,” he told Bolts this month. “If that means there should be fewer things on the ballot, then it might mean a healthier situation than what we had before.”

Another change that has made it harder to qualify initiatives is a provision tucked into a broad law that passed in 2014 with wide bipartisan support. It allows groups suing to challenge a petition to subpoena individual canvassers who sought out signatures for it; if a circulator does not show up to testify in court, all the signatures they collected are tossed out.

In 2018, a group opposed to a clean energy initiative filed a string of subpoenas against roughly 1,400 canvassers as part of a lawsuit alleging that the petition violated Arizona’s strict compliance standards. The petition’s organizers have said it cost them over $1.3 million to bring all these circulators to court, including costs of flights, lodging, and missed wages.

“The court let them do it, even though you could never get testimony from so many witnesses,” said Barton, the attorney who litigated the case. The clean energy initiative eventually did get enough signatures verified to qualify for the ballot, though it ultimately lost that year. Another petition drive didn’t even make it that far: Organizers of an initiative to outlaw dark money were hit by mass subpoenas, and thousands of signatures were tossed because circulators did not show up in court.

The Arizona supreme court blessed this subpoena rule in a 2018 ruling.

If you are bypassing the normal process, it should be pretty strict. If that means there should be fewer things on the ballot, then it might mean a healthier situation than what we had before.

– Sen. J.D. Mesnard, R-Chandler, on why making it tougher for initiatives to qualify for the ballot

Terry Goddard, a former Democratic attorney general who was behind the dark money initiative, warned that the ruling created a very high barrier of entry for direct democracy. “You not only have to get valid signatures but then you have to keep the circulator around and have them appear at a hearing or all their signatures are going to be determined invalid,” he said at the time.

Critics of this system filed a federal lawsuit, but they eventually withdrew their claims after losing in court. Katie Hobbs, a Democrat who at the time served as secretary of state, defended the subpoena system in a court filing, saying it did not pose an undue burden.

These restrictions on direct democracy—the strict compliance test, the subpoena rules—are still in place. And Barton warns they will get even harder to overcome if SCR 1015 passes this fall.

A ballot petition is virtually certain to have less room for error in some individual districts than it does statewide, and opponents would target canvassers in the district where a petition gathered the fewest supporters. Organizers would need to invest in collecting extra signatures in each district, going far beyond the minimum threshold to create buffers in all 30 without exceptions.

“They don’t need to knock off hundreds of thousands of signatures,” Barton said. “They just need to knock off a few thousand in one district.”

Arizona Republicans have also sought to close off other threats to their hold on power. In 2016, they expanded the Arizona supreme court, granting then-Governor Doug Ducey additional appointments that cemented a conservative majority. The maneuver helped lock in the right-wing majority that ruled in favor of abortion restrictions earlier this year.

The bill to expand the court was sponsored by Mesnard, who at the time was in the state House.

Democrats have gained power in recent years in Arizona. Hobbs narrowly flipped the governor’s mansion in 2022, breaking the GOP’s trifecta. This year, Democrats are also aiming to flip control of the state legislature for the first time since 1966.

In such a scenario, Gonski predicts, Republicans may end up regretting making it so hard to pass initiatives. “In the not-too-distant future, conservative groups could be the ones turning to direct democracy measures,” she said. “And they would have made it very difficult and expensive for them.”

“The political context is going to change probably in a way that makes this a boomerang they’re throwing into the wind that will come back and hit them in the face a couple years from now,” she added.

Arizona Republicans’ push to curtail direct democracy mirrors the party’s current efforts in a string of other states to set up additional hurdles for citizen-led initiatives.

This includes reforms in several states to create or toughen geographic requirements for signatures. Last year, Arkansas Republicans passed a law that required organizers to gather signatures in at least 50 of the state’s 75 counties—up from 15. Voters had rejected such a change when it was proposed to them as a referendum in 2022, but the legislature passed it through a regular bill anyway.

“The grassroots people are going to be screwed,” David Crouch, an Arkansas attorney who had helped spearhead a medical marijuana referendum in the state, told Bolts at the time.

In total, sixteen states impose some geographic requirements on petitions, but the scheme proposed in Arizona would be the strictest in the country, according to research compiled by Ballotpedia, a digital resource for elections information. In nearly all states with geographic mandates, the requirement is that signatures be gathered from some portion of counties or districts—not from every single one. The only state that allows no exception, Colorado, applies that rule only for constitutional amendments; Arizona’s would apply it to any initiative, including statutory changes.

“It is a minority veto,” Gonski said of the proposed change in Arizona. “It’s allowing people from one part of the state to veto something the majority of the state cares enough about to put on the ballot.”

Arizona for Abortion Access says their abortion rights measure had collected more than 500,000 signatures as of early April, already far more than what it’d need to qualify the item under current rules, and they were continuing to seek supporters. But if something goes wrong with their proposal this year while the GOP succeeds at restricting popular initiatives, abortion rights’ proponents warn that a redo would be exceedingly difficult.

“It has always been a very heavy lift, very hard work with ballot initiatives,” said Sheoran of the League of Women Voters. “But this is precisely why the Arizona Abortion Access campaign is so critical to have passed now.”

“If this [geographic requirement] initiative passes, a second go-around of an abortion amendment would never happen,” she added. “Every woman knows that. We know how serious this is.”

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