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Election Lawyer: 100-Word Descriptions Serve No Purpose In Arizona's Ballot Initiatives

STEVE GOLDSTEIN: The challenges Ben and Mark were just talking about, at least in part, revolve around 100-word descriptions for the ballot measures. They're intended to inform petition signers of what they're actually hoping to get on the ballot. But the conflicts around the precise wording have become extremely frequent in recent election cycles. To learn more, I'm joined by attorney Andy Gordon, who specializes in election law. Andy, does the system with these 100-word descriptions work right now?

ANDY GORDON: No, this system is completely nuts at this point. What we've got here is this statutory requirement that there be 100-word description of the initiative or referendum that's on the front page of the petition where the people sign. And as a result of a Supreme Court case a few years ago, everyone who is opposed to any initiative now challenges that language. OK? And that has just become the challenge du jour, so to speak. That 100-word summary requirement was put in decades and decades and decades ago just to give the voter a sense of what the initiative was about. The initiative itself is actually attached to the petition. So if a voter wants to take the time before signing a petition, they can read it. Now, let's be honest. It's 110 degrees out. How many people are going to do that, right? But now, because of the internet, all the information is available online. So if someone comes up to you and says, "Hey, I want you to sign this petition to legalize marijuana in Arizona. It just legalizes recreational marijuana." I'm just picking one by way of example. If the person wants to figure out what it's about, they say, "Well, I think I'll look it up on the web." It's all available. No one ever envisioned that. The key battleground on whether the initiative will make the ballot is this 100-word summary.

GOLDSTEIN: How much leeway do lawmakers have when it comes to this? How much can they put their hands on, and how much does that depend on who has the majority in the legislature?

GORDON: The fact of the matter is that the legislature has always hated the initiative and referendum process. They may say they respect it. They may say, "Oh, this is a fundamental right of the people, but they hate it. And so, regardless of who is in charge of the legislature, the legislature over the years has done as much as it possibly can to inhibit the initiative and referendum process. Over the last decade or so, the court has been very deferential to these changes imposed by the legislature.

GOLDSTEIN: So they're actually sort of forcing grassroots efforts, but then they don't want those grassroots efforts. So it almost feels like the solution would be for them to act on some of these issues themselves.

GORDON: If you look at any number of major changes — statutory changes in Arizona: the expansion of Medicaid being one really good example — that was done through the initiative process. Medical marijuana, done through the initiative process because the legislature won't act. Let's get back to this 100-word summary thing, OK? The legislature requires that if you want to initiate a law, you have to have this 100-word summary that provides for the principal provisions of the measure. And then, depending on who's on what side, they go after you hammer and tong in court. Does the legislature require of itself that before a legislator can propose legislation, he's got to provide an accurate 100-word summary of the legislation? No way.

GOLDSTEIN: How many attorneys are involved in making sure the language looks applicable or looks correct?

GORDON: Because these challenges to the hundred-word summary have become so much more common, that hundred-word language, at least in the initiatives I'm familiar with, is reviewed and re-reviewed and reviewed again. But there's no requirement that it be reviewed by anyone other than the proponents of the initiative. Now, what you can do is you can send that language and the initiative to leg. staff for its review and input, but I will tell you that people look at that six ways to Sunday.

GOLDSTEIN: Andy, finally, not only have you been heavily involved in election law, but this aspect of the 100-word summary and the legislature and how the courts have dealt with it has really seemed to bother you as far as the way this goes. So wrap this up for us. What are your biggest concerns about the way things have been handled when it comes to these summaries?

GORDON: We've got built into the Constitution that the people's right to initiate laws is fundamental and theoretically coequal to that of the legislature. And it's there is a safety valve when the legislature doesn't do its job. What we've now done by making this hundred-word summary, litigation — the current game to keep things off the ballot — is it tosses to the courts pretty much unbridled discretion on whether they think something is or is not fraudulent or create a significant danger of confusion. They may say they're doing that objectively, but none of that is objective, and A) it's undermining the people's right to initiate. And secondly, it's unnecessary. The only possible rationale for having that there is when the time was that there wasn't really a chance for the signer, the voter to look at it. And now, because it's all available on the internet, there's no purpose for it. As you can tell from the tone of my voice, I find it very frustrating.

GOLDSTEIN: That's Andy Gordon, among many other things, election law expert. Andy, thanks as always for the time.

GORDON: OK, thanks Steve. Bye.

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Steve Goldstein was a host at KJZZ from 1997 to 2022.