A judge says the summary of Proposition 145 that Arizona Secretary of State Adrian Fontes wrote is illegal.
The measure would protect school vouchers for children in military families, but it would also nullify any other measures that place any other restrictions on vouchers.
At the same time, though, a different judge ruled Proposition 145 could not go on the ballot, saying it violates the "single subject provision."
And, another potential ballot measure that would put new restrictions on vouchers is the subject of an ongoing legal challenge to its signatures.
Howard Fischer of Capitol Media Services joined The Show to talk about it.
Full conversation
MARK BRODIE: Good morning, Howie.
HOWARD FISCHER: Good morning. Yes, I love talking about ballot measures, because it’s the way the Legislature — it helps us figure out, why are we doing this?
MARK BRODIE: OK, so let’s start with the ruling late last week about this summary that Secretary of State Fontes wrote. Where would this summary have gone, and why did the judge say, “You can’t do that”?
HOWARD FISCHER: Well, this is a little different than sometimes we’ve discussed things like the ballot book that goes out to all 4.3 million voters, which has a description that’s put in there by the secretary of state. This goes on the actual physical ballot, so when you get your actual ballot, whether by mail or you go into a voting center, you will see there a short description of what the measure does and what the effect of a yes vote is and what the effect of a no vote is.
And the secretary of state, in terms of the proposition on 145, said it will have the effect, as you point out, of nullifying Prop. 212, which is the voucher measure. And he said that you need to know this, this in fact does describe what it does. It would prohibit the state from taking any money from any military families, and it would nullify the entire measure of Prop. 212, which has to do with things like income limits and limits on what you can purchase — no lingerie, things like that.
The judge said, “Here’s the problem.” The judge reads this to say, “The only thing you’re allowed to describe is the effect on existing law.” Prop. 212 is not existing law, and therefore the judge said, “You can’t make any mention at all to Prop. 212, because it would be argumentative and misleading.”
Now, as you point out, and as clearly noted, there is no question but that it would have an effect on Prop. 212. It was crafted that way. The sponsors acknowledge it was crafted that way. So the question that’s going to go now to the Supreme Court, presumably, assuming Adrian Fontes appeals, is: Is truth a sufficient defense against maybe the very strict reading of the law in terms of what voters are allowed to be told?
MARK BRODIE: Well, Howie, this all, in theory, could be moot, right? Because a different judge, as I mentioned, ruled Prop. 145 can’t even be on the ballot to begin with.
HOWARD FISCHER: Well, that gets into the issue of: Does it affect multiple things? Again, does Prop. 145, No. 1, it does protect military families that, right now, under Arizona law, voucher recipients can bank that money from year to year and use it for college. And that’s certainly within the permission of the Legislature to try to protect. The question that the other judge said is, “Wait, you cannot then say, ‘And, by the way, anything else that passed, whether it’s related to it or not, has to also go by the wayside.’”
And that gets into the question of a whole separate constitutional provision that says you can’t offer this stuff as a take-it-or-leave-it. You may want what’s in Prop. 145, but you may not want to kill Prop. 212. And so that’s going to go up on appeal also, because the question becomes: What is a single subject, and what, in fact, is just a different way of protecting the military family vouchers? ... Again, put three attorneys in a room, I’ll give you seven opinions of exactly what that does.
MARK BRODIE: Right. Well, and there are many more attorneys, Howie, arguing about the voucher ... measure that you had mentioned earlier. This is dealing with signatures and whether the folks gathering the signatures were qualified to do that. This is a multiday hearing that got underway late last week, continuing early this week. What’s going on with this?
HOWARD FISCHER: Well ... the people who want to make the change in the voucher laws, Prop. 212, submitted supposedly 415,000 and change in signatures, that’s according to Secretary of State’s Office. Secretary of state does an initial run-through and checks validity of certain things, got that down to somewhere around 389,000. They need 255,949 of those to be found valid. Now, the people who do not want Prop. 212 on the ballot are saying, “Well, wait. Some of the circulators were not qualified to circulate.”
And the reason you go after circulators is, if you knock off a circulator, you may knock out 100 signatures that they’ve gathered. They’ve raised things, for example, like: Did they, in fact, have the right address? This comes down to a question of: Were they supposed to list their home address, wherever they lived, maybe from out of state, or if they were staying in an Airbnb, is that, in fact, a proper address? And that becomes one argument for the judge. It comes down to a question of: Do they have a disqualifying criminal conviction? Because people convicted of certain crimes, unless they’ve had their civil rights restored, cannot circulate initiative and referendum petitions.
And then it got into a little side question of, well, who is mentally competent to do this? Because one of the cases that was before the judge on Friday was this woman had been found incompetent in some other case, but that had to do specifically with the facts of that case. And, in fact, she went on the stand and argued with the attorney who was trying to disqualify her, saying, “Am I incompetent? Are you not having a conversation with me?” How do you measure competence in terms of your ability to be able to circulate a petition?
Now, as you point out, that case is starting again this morning. It’s going to go on to tomorrow, and at some point the judge will issue a ruling as to whether there are enough valid signatures. And my guess is, given like everything else going on in Arizona, somebody will appeal to the Supreme Court.
MARK BRODIE: Right. Well, and Howie, quickly — speaking of quickly — these have to be decided quickly, right? Ballots have to get printed, they’ve got to start getting mailed to overseas voters, military voters, people like that, right?
HOWARD FISCHER: Maricopa County says its ballot-printing deadline is Aug. 20. Here we are on the 10th, so you don’t have a lot of time in there to do it. Now, the interesting thing is some of the smaller counties may, in fact, have an earlier deadline because of the fact they just don’t have the staff to go ahead and prepare it.
And this also spills over, as much as I hate to say it, into the question that, officially speaking, Katie Hobbs has not selected and told the Secretary of State’s Office who is her lieutenant governor. We’ve all got reports about who that is. If the secretary of state said, “I needed that by last Friday,” Governor’s Office seems to say, “Well, but we’ve got a little more time.” Now, again, everybody’s pushing right up against that deadline, and it’s going to create one heck of a mess.
MARK BRODIE: Interesting. We will watch it unfold. That is Howie Fischer of Capitol Media Services. Howie, thanks as always.
HOWARD FISCHER: Have a great day.
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