Republicans want to make it easier for lawsuits to block ballot initiatives

Photo illustration by Jim Small. Photo by Gage Skidmore (modified) | Flickr/CC BY-SA 2.0

GOP legislation that passed through the Senate on Monday would ask voters to amend the Arizona Constitution to allow lawsuits against citizen ballot initiatives before the initiative goes to the ballot. 

The idea is the latest in a string of Republican-backed proposals over the past two decades that have sought to — in many cases, successfully — weaken the citizen initiative process that allows Arizona voters to legislate at the ballot box. 

Historically, citizen initiatives have been used by liberal groups to win approval for policies that the legislature, which has been controlled by Republicans nearly uninterrupted since 1966, are unwilling to consider. Many of those policies, such as increasing the minimum wage or creating a publicly funded campaign finance system, have proven more popular with voters than with GOP lawmakers.

In recent years, Republican legislators, backed by big business interests and wealthy donors that have sued to block a variety of initiatives, have passed a series of laws aimed at making it harder for initiatives to qualify for the ballot and easier for challengers to get them removed from the ballot.

Senate Concurrent Resolution 1041 continues the latter strategy by allowing anyone to challenge the constitutionality of a citizen-led ballot initiative in court after the petition for the initiative is filed with the Secretary of State’s Office and at least 100 days before election on which the initiative is set to be on the ballot. 

If a superior court shoots down the constitutional challenge, then the plaintiff has five days to appeal the decision directly to the Arizona Supreme Court. 

The effect would be that interests opposed to a ballot initiative could go to court before the election, sparing them the expense of mounting a campaign against the measure. And it would force backers to spend money raised for a campaign instead on litigation.

But during a Feb. 15 Senate Elections Committee meeting, the resolution’s sponsor, Sen. J.D. Mesnard, R-Chandler, said it wasn’t meant to help ballot measure opponents. Rather, he said, his goal is to protect those backing an initiative from spending hundreds of thousands or millions on a campaign only to see it passed by the voters and then later struck down in court. 

Since Arizona became a state, its citizens have had the right to gather a certain number of voter signatures to back an initiative that would change the state’s statutes or constitution on the ballot for voter approval. 

But in most cases, legal challenges to a ballot measure can’t be mounted until after it’s been approved by the voters. 

“This is just saying, before we go through all this effort, we’re going to sort it out in court,” Mesnard said. 

He added that there’s been a lot of disappointment from organizers who spent a lot of time and effort getting an initiative on the ballot, to see it approved by voters and then be nixed by the courts. 

“If I were them, I’d rather know earlier in the effort that this thing is going to go south,” he said. 

But none of the groups that have mounted ballot initiatives, including those that ultimately were deemed unconstitutional by the courts, are supporting Mesnard’s legislation. But it is backed by the Arizona Free Enterprise Club, a conservative organization that has been a plaintiff in a number of lawsuits seeking to block initiatives from qualifying for the ballot and to overturn those approved by voters.

Tucson Democrat Sen. Priya Sundareshan countered that Mesnard’s proposal would make the citizen-led initiative process more difficult by possibly dividing the attention of the organization leading the initiative between signature gathering and defending the ballot proposal in court. 

“I don’t think that the majority of groups that do run initiatives are seeking this,” Sundareshan said. “It will only add to cost and distraction. I think this is an attempt to make the initiative process harder.”

That’s long been a goal of Republicans in the Arizona Legislature, and voters this year will already be asked to weigh in on one constitutional amendment aimed at making it harder for ballot initiatives. 

Last year, the legislature approved legislation requiring that a certain number of initiative signatures come from each district across the state, something that would make obtaining enough signatures more logistically difficult. Critics say that, if voters pass the amendment, it would essentially give one district veto power even if the rest of the state backed the referendum. 

Sundareshan pointed out that those pushing for a ballot initiative already have the option to run their language by legislative attorneys to insure that it complies with the U.S. and Arizona constitutions. 

Sen. Anna Hernandez, D-Phoenix, asked Mesnard if they should apply the same rules to the legislature itself, since some of its laws have been struck down as unconstitutional after being approved by both chambers and being signed into law by the governor. 

He answered that it would be logistically impossible, with more than 1,000 bills introduced by legislators each year, adding that there’s a more robust vetting process for bills sponsored by lawmakers. 

“I don’t think it’s necessary in the same kind of way,” Mesnard said. 

But sometimes, even when the legislature’s own attorneys warn lawmakers that their proposal’s are unconstitutional, they vote to pass them anyway. 

In 2023, legislative attorneys said that a proposal to limit the filming of police was blatantly unconstitutional, but GOP lawmakers ignored the advice and passed the bill. A federal judge quickly ruled that it was unconstitutional. (The Arizona Mirror was one of the plaintiffs in the case challenging the law’s constitutionality.) 

Before voting against the resolution on Monday, Sundareshan said that voters use the ballot initiative process because legislators ignore their wants and needs, forcing them to turn to direct democracy, their only alternative. 

“So much effort has to go into initiatives because this body is unwilling to put up these proposals through the normal (lawmaking) process,” she said. 

Before voting in favor of the resolution Republican Sen. Anthony Kern, of Glendale, accused signature gatherers for an initiative that would ask voters to make abortion a right in Arizona of lying to voters to get signatures. 

“We do need to make it harder for things to be put on the ballot,” he said.

Hernandez, who says she’s personally collected signatures for that ballot initiative, said that Kern’s remarks were not true, saying she’s spoken with Republicans, Democrats and independents about the initiative. 

“They are clear on what the ballot initiative is, because they agree that politicians have no business in reproductive decisions,” she said. 

The resolution passed through the Senate by a vote of 16-12 on Monday, with only Republicans voting in favor. Next, it will head to the House of Representatives for consideration.

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