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Citizens Initiatives Ask Arizona Supreme Court For Right To Collect Signatures Online

Groups trying to put measures on the November ballot are asking the Arizona Supreme Court to let them gather the remaining signatures they need online.

In a new lawsuit Thursday, lawyers for four initiative campaigns argue that COVID-19 has made it effectively impossible for them to make contact with individuals and get them to sign the petitions. So they are asking the state's high court to declare that they have the same right as political candidates to have people use the existing E-Qual system to get the signatures they need.

Attorney Roopali Desai said she believes that the constitutional rights of Arizonans to propose their own laws and constitutional amendments should have long required that their ability to circulate petitions be no more onerous than for other types of petitions. And she said that they should have had access to that E-Qual system all along.

"But at the very least, current exigencies demand that they now have access to that system starting immediately, and until the deadline to submit initiative petitions and signatures,'' Desai said.

That deadline is July 2, meaning there's not a lot of time for the justices to consider the issue, listen to arguments and rule.

At the heart of her argument are constitutional provisions which say that the right to make laws is not exclusive to the Legislature.

"The people reserve the power to propose laws and amendments to the constitution and to enact or reject such laws and amendments at the polls, independently of the legislature,'' the constitution reads. And then it sets up requirements for how many signatures are needed to put issues on the ballot.

Desai is not challenging those numbers or even the filing deadline. But she said that constitutional right matters.

"And when we have a circumstance that makes that impossible, and their rights aren't able to be upheld, the courts are an appropriate place to look for relief,'' she told Capitol Media Services.

Desai said there's already precedent for what she is seeking: the E-Qual laws that allow candidates to gather signatures for their nominating petitions online. That system is linked to voter registration records, including images of signatures, in a way designed to ensure the validity of the names on the petitions.

"So we are asking the court to uphold the constitutional right of citizens to initiate laws by extending an already existing program that allows candidates to collect signatures online to petitioners during this period of time because of the exigent circumstances we are experiencing,'' she said.

And Desai said the fact that lawmakers have refused to allow online signature gathering for initiative petitions does not preclude the justices from concluding otherwise. She said it is the role of courts to interpret the law, to determine whether a law is unconstitutional or problematic, or whether it is unequally applied.

Neither Secretary State Katie Hobbs, who is the state's chief elections officer, nor Attorney General Mark Brnovich would comment on the lawsuit.

Challenging the ban on online signatures are four groups hoping to put issues on the ballot:

  • Save Our Schools Arizona which wants a limit on the number of vouchers of public dollars that can go to send students to private and parochial schools.
  • Invest in Education seeking a tax surcharge on incomes of individuals earning more than $250,000 a year to provide more dollars for K-12 schools.
  • Smart and Safe Arizona which hopes to legalize the recreational use of marijuana.
  • Arizonans for Second Chances, Rehabilitation and Public Safety seeking to give judges more discretion in sentencing and providing more earned-release credits for inmates.

Each needs 237,645 valid signatures by the deadline to put issues before voters in November.
One potential legal issue could be whether the pandemic — and even the stay-at-home order by Gov. Doug Ducey — is a bar to the ability of these campaigns to gather the necessary signatures.

There is no prohibition on people going door-to-door to seek signatures or standing outside of public or commercial buildings hoping to convince people to sign the petitions. In fact, the stay-at-home order issued on Monday by the governor has a specific exemption for those exercising their First Amendment rights, which would include circulating petitions.

Desai, however, said that doesn't represent the reality of the situation.

"I'd invite you to stand in front of a library and see if you see a single individual pass by right now,'' she said. And Desai said it's irrelevant that people are still going to grocery stores which is a place that petition circulators sometimes stand.

"It's a matter of whether or not people should be forced to make the Hobson's choice of exercising their right to sign a petition, or collect a signature petition, and get sick,'' she said. That, Desai said, makes the question whether it is "effective'' to stand outside a grocery store to gather signature, "not whether we can send armies of people out to try to collect signatures.''

It's not just the Ducey order that Desai said creates a practical barrier to people exercising their right to propose their own laws through initiative. She cited recommendations by the Centers for Disease Control and Prevention that people avoid social gatherings of 10 or more, that people with underlying health conditions should stay home, and that everyone practice "social distancing'' by maintaining a six-foot buffer.

"The effect of these official proclamations and guidance is stark,'' Desai said. "Traffic is non-existent, streets are empty, large events are canceled, and people are staying at home when possible to help mitigate the spread of COVID-19.''

And even if there were a safe way to gather signatures, Desai said there's something else.

"Large public events that have historically been the ripest ground for gathering petition signatures will now be non-existent for at least another month, but probably longer,'' she told the justices. "In short, signature gathering will halt, and the initiative proponents' hard word and investment is in jeopardy.''