Republican lawmakers crafted an explanation of a measure to make major reforms in the voucher system in a way that is illegally designed to convince people to vote against it, a trial judge has ruled.
In a new decision, Maricopa County Superior Court Judge Daniel Martin said it was wrong of the Legislative Council to try to tell voters that if Proposition 212 is approved that it will give the initiative organizers the right to go to court and sue participating families and schools if they violate any of the new rules in the ballot measure.
That, Martin concluded, is not true.
So he ordered the Republican-controlled council to recraft it — this time without the misleading language — and do so by Aug. 21.
A spokesman for House Speaker Steve Montenegro, who chairs the council, said lawyers for the Legislature are "reviewing the ruling."
The victory for the Protect Education Accountability Now Committee was only partial. Martin rejected several other complaints that what was crafted by the council is unfair.
But the ruling is significant because what the council adopts goes out in a brochure sent to the homes of all 4.3 million registered voters in Arizona.
State law requires the explanation the council crafts for that brochure to be impartial, with the idea being that it is supposed to be an honest explanation of the effect of any ballot measure, regardless of claims by proponents and opponents.
This fight is over Prop. 212, which seeks to make major changes to what is known as the Empowerment Scholarship Account program that provides vouchers of tax dollars to students to attend private or parochial schools or for home schooling. It seeks to impose new oversight, including what kinds of items can and cannot be purchased with voucher dollars. And it also would deny vouchers to students from families making more than $150,000 a year.
One provision in Prop. 212 says that if voters approve the measure the Protect Education committee has the legal right to sue or intervene in any action to ensure that it is enforced. It also says if anyone else sues to invalidate any provision of the initiative that the committee is entitled to go to court to defend it.
But the council — at least the Republicans on the panel — voted to put language in that brochure that the Protect Education Committee would have "the power to sue the families and private schools that participate in the program for any violations of the proposition."
Attorneys for the committee said that's false.
"The analysis manufactures a threat found nowhere in the initiative," they told Martin. More to the point, they said the verbiage seeks to tell those with children in the ESA program that if they vote for Prop. 212 it "would expose them to suit by the sponsoring committee."
"That is the paradigm of provocative phrasing," the lawyers said, language not permitted in these "impartial" explanations.
Martin said courts generally defer to how the Legislative Council crafts these explanations. But he said that doesn't give its members free rein to just come up with verbiage that doesn't reflect what's actually in the ballot measure. And that, said the judge, is exactly what happened here.
"The language employed by the Legislative Council is sufficiently partisan to violate (election law) and therefore must be stricken or revised," Martin wrote.
That order to the council comes even as voucher supporters are in another courtroom trying to knock Prop. 212 off the ballot entirely.
Attorneys for challengers in that case contend that many people who gathered the more than 421,000 signatures to put the issue on the November ballot were not legally entitled to be circulators.
If a circulator is found to have been unqualified, then each of the signatures gathered cannot be counted. And that could leave the petition drive short of the 255,949 valid signatures needed to put the issue to voters in November.
That case is in front of Maricopa County Superior Court Judge David McDowell. He is expected to rule by the end of this week.
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