Voters will get the chance to add guardrails to the state’s universal private school voucher program in November — probably.
GOP lawmakers expanded Empowerment Scholarship Accounts in 2022, making them available to all K-12 students.
Democrats and public education advocates oppose universal ESAs and advocate for restricting the program, which has ballooned to more than 100,000 students and a projected cost of over $1 billion per year.
As of now, there are two competing measures on ESAs, which may be on the ballot in November, provided they both survive court challenges. Not to mention two other education-related measures that aren’t about vouchers.
Plus, if voters pass both ESA measures, another legal challenge is most likely on the table.
As for what voters will do with those options? It’s anyone’s guess.
The Protect Education Act
The Arizona Education Association is the state's public school teachers union. Along with public education advocacy nonprofit Save Our Schools Arizona, the AEA is pushing a voter referral that would put guardrails on ESAs, if voters pass it.
They’re calling their measure the Protect Education Act.
The referral would require schools that accept ESAs to conduct background checks on staff members who work with children, ban the use of ESAs on non-educational expenses, and revert unspent ESA dollars to public schools.
The Protect Education Act would also cap income eligibility for ESA families at $150,000 a year.
The AEA and SOSAZ turned in their signatures in early July and estimate they’ve gathered 421,451.
The short-lived alternative
Another group called Fortify AZ attempted to run a different ESA-guardrails ballot measure that would have been far less restrictive and didn’t include an income cap.
Fortify AZ was bankrolled by a pro-ESA group called American Federation for Children.
Proponents of the Protect Education Act accused Fortify AZ of obstructing their signature gatherers and spreading disinformation in order to confuse voters about the similar referral efforts.
A last-minute deal attempt
On the very last days of the legislative session in June, GOP lawmakers tried to make an agreement with the AEA to get them to pull the Protect Education Act from the ballot in exchange for lawmakers putting some guardrails on the ESA program themselves.
SOSAZ opposed the deal and it failed in the state Senate with every Democrat and two Republicans voting against it.
Those Republicans were Senate President Warren Petersen (R-Gilbert) and Freedom Caucus leader Jake Hoffman (R-Queen Creek).
Counterattacks
When the deal between GOP lawmakers and the AEA fell through, the Republicans pushed through a ballot measure themselves at the last minute.
It’s labeled “military families, scholarship accounts” and is ostensibly about protecting education dollars for military families specifically, but in reality the measure is a poison pill.
A few paragraphs in, the measure states that it will nullify the Protect Education Act if voters pass both measures in November.
Not only that, but Republicans added two more measures at the ballot. One is targeted at the AEA and would ban teachers from engaging in certain union activities.
The last bill requires 60% of all public school funding to be spent in the classroom instead of other things.
The Fortify AZ group then put a stop to their signature-gathering effort and threw their support behind the GOP “poison pill” measure.
Teachers v. poison pill
The AEA and SOSAZ promptly filed a legal challenge against the poison pill. They argue it violates the state Constitution’s single-subject rule, which says that individual pieces of legislation can’t be so broad that they would force voters to accept multiple unrelated things with a single vote.
The education groups also argue the poison pill is designed to confuse voters, as its title doesn’t make people aware of the impact it would have on the Protect Education Act.
Arizona law states that when voters pass two conflicting constitutional amendments, the one that gets the most votes takes precedence.
But Republicans argue that because the poison pill is a constitutional amendment and the Protect Education Act would affect state statute rather than the state Constitution, the poison pill takes precedence if voters pass both.
That’s an unanswered legal question, as no such thing has happened in Arizona history.
Maricopa County Superior Court Judge Joseph Kremer set a hearing for July 24 on the matter.
Signature lawsuit incoming
The AEA and SOSAZ must collect 255,949 valid signatures to get their referral on the November ballot.
They turned in their signatures and are expecting opponents to file a legal challenge in an effort to prove they didn’t collect enough valid signatures and keep the measure off the ballot.
The American Federation for Children immediately announced it plans to file a signature challenge.
“AFC has been fighting for years to protect the Arizona school choice program. The unions have proven in the past that they are willing to lie in order to take this opportunity away from Arizona students, and we intend to launch a legal challenge to this union-backed sham to identify and prove which signatures are invalid. This effort will be challenging, but thanks to our support for a competing initiative, we are uniquely aware that the unions and their front groups appear to have acted improperly in the signature-gathering process,” the AFC said in a statement.
Collateral damage
The language of the GOP ballot measure targeting the AEA may also be written in such a way that it would affect police, fire and other public unions.
The measure states, “this state or any political subdivision of this state may not negotiate with a labor organization an exclusive representation agreement, collective bargaining agreement, memorandum of understanding, contract or other agreement regarding the terms and conditions of employment.”
The police union is displeased with the possibility that they’ll be caught in the crosshairs of the Legislature's fight with the teachers union.
The art of killing a deal
After the Legislature adjourned for the session and before the education groups turned in their signatures, lawmakers tried once more to bring the groups to the table and make a deal to keep the Protect Education Act off the ballot.
Senate Minority Leader Priya Sundareshan (D-Tucson) said her party was initially negotiating in good faith with GOP House leaders to get Republicans to pull back the poison bill, teacher union and school spending ballot measures and add ESA guardrails in exchange for the public education advocates not turning in their signatures to get the Protest Education Act on the ballot.
Gov. Katie Hobbs says the conversation stopped when Republican gubernatorial opponent Congressman Andy Biggs inserted himself into the talks and advocated for the Republicans to only pull the anti-union measure in exchange for teachers pulling the Protect Education Act off the ballot, and not having lawmakers agree to put any guardrails on ESAs.
“Congressman Biggs has the full weight of the Arizona House and Senate standing with him,'' House Speaker Steve Montenegro posted on X.
“That bipartisan opportunity kind of fell apart when Biggs got involved and said, no, you should just trade one for one. And that was not acceptable to anyone. And so, he and the Republicans who got on board with him threw police, fire, teachers under the bus,” Hobbs said.
Hobbs told KJZZ it’s unlikely she’ll call the Legislature into a special session just so lawmakers can amend the anti-union measure to ensure it just targets the teachers union since that’s not something Democrats support and they aren’t being offered anything in return.
“There's no leverage around any other ESA stuff,” Hobbs said.
