A handful of proposed laws sent to the November ballot by the Republican-led Arizona Legislature are now facing legal challenges arguing they violate the state constitution.
The five legislative referrals deal with a broad range of issues, including elections, public employee unions, transgender rights and diversity.
But the legal arguments against the measures come down to the same constitutional questions: Namely, that lawmakers violated a law barring them from engaging in “log rolling,” or jamming too many unrelated provisions into the same measure.
“If more than one proposed amendment is submitted at any election, the proposed amendments shall be submitted in such a manner that the electors may vote for or against such proposed amendments separately,” according to the Arizona Constitution.
That rule requires lawmakers to allow Arizona voters to weigh each proposed new law separately, the Legislature’s critics argue.
“Log-rolling is combining distinct propositions in a single measure so that voters must chose to approve provisions they disapprove of to secure the adoption of one of which they approve,” according to a lawsuit filed against HCR 2040, a referral targeting the state’s public school teachers unions.
Senate President Warren Petersen, a Republican now running for attorney general, said he plans to intervene in each lawsuit to defend the Legislature’s ballot referrals.
Education
Republican lawmakers passed HCR 2040 on the final day of the legislative session after a last-minute school voucher reform deal between GOP leaders and the Arizona Education Association fell through.
The referral would prohibit school districts from financially supporting labor unions. It would also prohibit union activities during working hours and prohibit teachers from distributing communications on a union's behalf. And it would ban public school teachers from going on strike, or risk losing their jobs.
“What this bill does is says we are not going to use public dollars to subsidize a private organization,” Rep. Justin Olson (R-Mesa) said.
But critics argue the measure is overly broad.
That’s because a provision towards the end of the proposed law includes broad language that could effectively kill all public sector unions in the state, including those that represent police and firefighters, according to a lawsuit filed by the Arizona Education Association and other unions.
That section begins by talking about school district employees.
“A school district employee has the right to negotiate the school district employee’s own terms and conditions of employment,” it states.
However, further down, it says that “this state or any political subdivision of this state may not negotiate with a labor organization an exclusive representation agreement, collective bargaining agreement” or similar contracts.
The term “political subdivision of the state” typically refers to cities, towns, counties and school boards, the lawsuit argues, which means that section would effectively ban the state and local governments from negotiating with any union.
The lawsuit argues that combining the provisions that specifically target teacher unions with that more broad language violates the state constitution.
“A voter could rationally favor limiting school districts' use of public funds to subsidize labor organizations while opposing the abolition of collective bargaining for police officers, firefighters, and other state and municipal employees, or the reverse,” according to the lawsuit.
Republican lawmakers rejected that logic.
They point out that the sentence highlighted in the lawsuit is part of a larger provision that begins by targeting public school unions.
“This bill does not prevent anyone from joining a union,” Olson said.
But multiple unions have expressed concern about the implications of HCR 2040, according reporting by the Arizona Mirror.
The measure “threatens the wellbeing of police officers across the state,” the Arizona Police Association wrote on social media.
Education groups also filed a separate challenge to a referral that would void efforts to put guardrails on the state’s universal school voucher program.
Voting
Republicans also passed a referral sponsored by Rep. Alexander Kolodin (R-Scottsdale) that would make a host of changes to the state’s election laws, including those that were previously vetoed by Democratic Gov. Katie Hobbs.
The measure, if approved by voters, would require every Arizonan to show an ID before voting.
Arizona already requires visitors to provide that ID when registering to vote. And anyone casting a ballot in person also has to prove their identify with a photo ID or two other documents, such as their vehicle registration.
But, in Arizona, upwards of 80% of people vote by mail. And those voters’ identification is verified through the signature on their ballot envelope, not an ID.
Kolodin’s measure would change that, and critics question how individuals voting by mail would provide the required proof.
“I think that's the crux of the issue is, how do you do that?” said Tempe Councilman Randy Keating, who filed a lawsuit challenging the measure. “ You send in a photocopy of your ID along with your ballot? There's been talk of having to bring your ballot to a ballot center and show ID.”
“Well, then we're getting rid of the whole point of mail-in voting,” he added.
That would hurt Arizonans who rely on that method, especially the elderly and rural residents, Keating said.
But that provision isn’t actually the primary target of the lawsuit.
Instead, Keating accuses Republicans of again packing too many unrelated measures into HCR 2001 alongside the new ID requirement.
That includes sections requiring counties to tabulate ballots on site at polling places and banning foreign nationals from spending money to influence elections.
“It's meant solely to cause disruption to sow confusion and engineer chaos in any future elections,” Keating said. “And that way, when that happens, they can point to the system that they broke and say, ‘oh, look, this doesn't work after all. I guess you better either completely revamp it in a detrimental way or remove it altogether.”
Petersen, the Republican Senate president, promised to defend the measure in court.
“I am going to intervene and defend the measure,” Petersen wrote on social media. “Arizonans deserve the opportunity to vote for safe and secure elections.”
Transgender students in sports
HCR 2003 would require schools and athletic associations to separate sports based on biological sex and ban transgender athletes from using bathrooms, locker rooms or other private spaces that don’t align with their biological sex.
Republican lawmakers tried to pass similar restrictions for years, but they were vetoed by Hobbs, the democratic governor.
Now, they want to let voters decide.
But a lawsuit filed by Will of the People, a political action committee formed by the progressive group Progress Arizona, asks a judge to keep the measure off the ballot, saying it will cause irreversible harm, humiliation and invasions of privacy for transgender children.
“The folks who drafted (HCR) 2003 want to create artificial limits for some members of our community, but ultimately those limits are limits for all of us,” said Rev. Sarah Oglesby-Dunegan, a Chandler minister who also signed onto the lawsuit.
The lawsuit argues HCR 2003 addresses two unrelated issues — transgender students in sports and access to bathrooms and other facilities, in violation of the Arizona Constitution.
It also claims that vague wording in the law could actually ban single-use restrooms, because of a ban on authorizing “any individual to use a restroom … that is not designated for that individual’s sex.”
“Any school or athletic association that provides restrooms, would be prohibited from authorizing any individual from using such a single-occupancy but not sex labeled facility,” according to the lawsuit.
The lawsuit also argues the measure’s title is misleading, which would be another constitutional violation.
That title states it is an act “relating to student athletics,” and the legislation says it can also be called the “Protect Girls' Sports in Arizona Act.”
“HCR 2003 title is misleading to the point of fraud and creates a significant danger of electorate confusion and unfairness, because it provides no reference to its restrictions on non-athletes' use of private facilities,” according to the lawsuit.
Diversity, equity and inclusion
Will of the People also filed a separate lawsuit against HCR 2044, a referral designed to limit so-called “DEI” policies in state government.
HCR 2044 bans the state from spending any money in a way that discriminates against individuals as it relates to employment, education or contracts. The measure targets diversity, equity and inclusion and policies that aim to give minority groups a leg up.
Petersen, the Senate president, said the measure was designed “to make sure that people are judged by the content of their character, and not by the color of their skin.”
The lawsuit argues that the discrimination that lawmakers say they are trying to stop with the legislation is already barred by state and federal laws like the 14th Amendment to the U.S. Constitution and the Arizona Civil Rights Act.
Critics claim Republican lawmakers only included those provisions to provide cover for the parts of the law that would ban training and other policies that focus on disparate treatment people have experienced based on race, discussions of “race-based privilege,” and similar topics.
“The logrolling involves hiding a controversial measure among a series of … popular prohibitions that are already a part of the law and constitution of Arizona and the United States,” according to the lawsuit.
The lawsuit also argues that the ban on race-based policies and programs violates the First Amendment by infringing on free speech.
