Arizona election reform ballot measure survives legal hurdle

Arizonans will get a chance to decide on a package of proposed changes in election law on everything from who can spend money to influence races to a requirement that all voters — including those who cast ballots by mail — will have to provide identification.

In a new ruling Tuesday, the Arizona Supreme Court rejected arguments that the Republicans who crafted Proposition 144 had put too many things into a single take-it-or-leave-it package. Tempe City Councilman Randy Keating said each of the provisions should have to be offered to voters on their own merits.

Justice John Lopez disagreed.

"These provisions are interrelated because each regulate the same context — the conduct of public elections," he wrote for himself and three other justices. Lopez said it's irrelevant that each of the proposed changes could be presented to voters separately.

But Chief Justice Ann Scott Timmer and Justice Maria Elena Cruz said two of the changes that Prop. 144 would make are not sufficiently interrelated to be presented to voters as a single package.

They said those provisions — one on having early ballots tabulated on site when dropped off and the other giving lawmakers broad powers to enact new election law — are not sufficiently linked to everything else that the measure would do if approved.

"Voters should be permitted to consider (the two sections) separately," they wrote.

And they said putting them in a single package violates constitutional requirements prohibiting disparate subjects from being put into a single ballot measure.

Tuesday's ruling, however, addresses only whether Prop. 144 will be on the ballot. Still to be decided is what voters will be told about the measure.

America First Legal contends that Democratic Secretary of State Adrian Fontes is trying to mislead voters — and using words designed to get voters to reject the GOP-crafted ballot measure.

A trial judge rejected those claims. Now America First Legal is seeking Supreme Court review.

Prop. 144 has multiple provisions.

It would place a provision in the Arizona Constitution saying only citizens can vote. There also are restrictions on spending by foreign nationals to influence elections, and a mandate for all voters to show identification when casting a ballot.

Keating, in filing suit, said a constitutional amendment must be "sufficiently related to a common purpose or principle" to form "a consistent and workable whole." What lawmakers put into Prop. 144, he said, were "far-flung areas of the law."

When a trial judge rejected the claim, he appealed. But the Supreme Court majority, while acknowledging the multiple sections, rejected his claim.

"They embrace the single general topic of election administration of public elections," Lopez wrote.

"They concern a single new constitutional section," he continued. "And they are qualitatively similar in their shared aim of ensuring that Arizona elections are decided by, and only by, eligible citizen voters."

Timmer and Cruz said that's true of most of the provisions. But they said that two of them are sufficiently different and that voters should be allowed to decide them separately.

One deals with the issue of early ballots.

These can be mailed back. But voters also can drop them off at polling places.

Generally speaking, these ballots have been taken back to a central office where they are processed by having the signatures on the outside of the ballots compared with existing records. Only if they match can election workers open the envelopes and tabulate the results.

Proponents have said that the high number of people who drop off those early ballots unnecessarily slows up results.

Prop. 144 allows — but does not require — those who bring early ballots to polling places to present the same kind of identification they would need if they were voting in person. If that matches, the envelope could be opened there and the ballots immediately tabulated along with those cast in person.

The dissenting justices said that should not have been combined with the other provisions and instead offered on its own.

They also argued that voters should have been given the option to separately consider putting language in the Arizona Constitution that says that all future election laws are presumed to be legal as long as they are connected to what the Legislature considers a "legitimate state interest." And that is defined as covering everything from getting timely election results to the broader category of "preserving public confidence in the integrity of elections."

The verbiage in that section also is behind the separate legal challenge to the ballot wording.

Under Arizona law, the secretary of state is required to prepare a short title for each measure as well as a brief explanation of the effects of voting "yes" or "no" on the item. That language actually goes on the ballot itself.

James Rogers, attorney for America First Legal, contends that Fontes broke the law by writing that approval of the language spelling out the authority of the Legislature may "make it harder to challenge election laws." That, Rogers said, amounts to making improper legal predictions — and in a way that could affect whether people decide to vote for the measure.

Maricopa County Superior Court Judge Adele Ponce rejected that argument.

"The fact that it is unknown precisely how the language will be applied or interpreted by the courts does not preclude the secretary from describing its potential impact, nor does it render that description false or clearly misleading," she wrote. "Rather, the description can reasonably be regarded as an attempt to provide necessary and appropriate information to the voting public."

The justices have not said when they will rule on that issue.