Measure planned to bar ‘self-dealing’ at the Capitol, curb restrictions on initiative measures

By: - September 16, 2019 10:50 am

The mosaic tile version of the Arizona state seal in the floor of the Capitol building. Photo by Bernard Gagnon | Wikimedia Commons/CC BY-SA 3.0

Voters next year may get a chance to bar lawmakers from voting on legislation that benefits them financially, roll back restrictions on citizen initiatives and repeal a ban on door-to-door ballot collections through a wide-raging ballot measure crafted by a group of Democratic operatives.

The Democracy and Accountability Act would strengthen conflict-of-interest laws at the legislature, which critics have long decried as toothless and inadequate. It would also scrap a ban on door-to-door ballot collections, a practice that used to be a common tactic in Democratic campaigns and which Republicans refer to as “ballot harvesting.”

In addition, it would repeal a law allowing opponents of proposed ballot measures to subpoena petition-gatherers for any reason, which has already proven to be an effective tool for kicking initiatives off the ballot. And it seeks to loosen the increasingly restrictive registration requirements for petition gatherers.

The Republican-controlled legislature has enacted a series of new restrictions over the past several years making it more difficult to put citizen initiatives on the ballot, often at the behest of corporate interests. The initiative process is often a favored tool of the left, which is able to use it to pass liberal policies that GOP lawmakers refuse to consider at the legislature. 

In recent years, voters have approved a higher minimum wage, expanded Medicaid coverage and medical marijuana.

The initiative is a joint project by Andrew Chavez, owner of signature-gathering company Petition Partners; Roopali Desai, a Democratic elections attorney; and Chad Campbell and Stacy Pearson, of the Democratic consulting firm Strategies 360.

Stopping ‘self-dealing’ at the Capitol

Pearson focused most heavily on the conflict-of-interest provision in the wide-ranging ballot measure.

Lawmakers are currently bound by a legislative rule known as the “Rule of 10.” That rule prevents legislators from voting on matters in which they or members of their immediate family have personal financial interests. But that prohibition doesn’t apply if the lawmakers or their relatives are part of a “class of persons” larger than 10 people who will be affected.

The Rule of 10 leaves a lot of wiggle room for legislators to cast votes that have been quite profitable for them. In perhaps the most well-known example, former Senate President Steve Yarbrough, who owns a school tuition organization, spent years pushing legislation to expand Arizona’s STO program. 

And Sen. Eddie Farnsworth, R-Gilbert, owned a chain of charter schools, and he supported legislative efforts to expand charter schools. He sold his Benjamin Franklin charter school chain for millions last year. 

The Democracy and Accountability Act would beef up legislative conflict-of-interest laws to prohibit legislators from voting on most bills in which they or their relatives have a “direct and substantial interest,” defined as a financial interest that’s not shared by the public generally or by “a significant segment of the public in a similar manner.”

The conflict-of-interest prohibition doesn’t apply to legislation on taxes or state employee compensation. It also wouldn’t apply in cases where lawmakers or their families owns less than 3 percent of a corporation’s stock, provided the legislators and their relatives don’t derive more than 5 percent of their annual income from stock dividends. 

“We can’t trust the legislature to do the right thing for the citizens and the voters. So, there comes a time when folks who have the influence or have the ability to do work themselves need to take it on,” Pearson said.

Pearson said the campaign hasn’t raised any money and has no plans to solicit funding. Instead, it will rely on volunteers and in-kind contributions in the form of services provided by the initiative’s backers. Petition Partners will collect the signatures, Desai will provide legal services and Strategies 360 will handle the marketing, she said. 

The campaign must collect at least 237,645 valid signatures by July 20 to qualify for the November 2020 ballot.

As long as it qualifies for the ballot, Pearson suggested that the initiative won’t need much funding for a 2020 campaign, and predicted that the conflict-of-interest crackdown will be especially popular with voters.

“Assuming there’s qualification on the ballot, how do you argue that elected officials shouldn’t self-deal?” she said. 

The return of ‘ballot harvesting’

Another part of the act, unrelated to the initiative process, would once again allow campaigns, activists and others to collect completed ballots from voters and submit them to election officials. The practice, which was used almost exclusively by Democrats, involved sending people to voters’ homes to collect their early ballots for submission to election officials. 

Republicans dubbed the activity “ballot harvesting” and said it invites fraud. They banned it in 2016 with a law that prohibits anyone except relatives and household members from collecting another person’s ballot.

The initiative proposal permits anyone to collect and submit another voter’s ballot to election officials, as long as they have that voter’s consent. State law already makes it a Class 5 felony not to turn in another person’s ballot, and the act adds a $500 fine to the mix. The money from those fines would go into the state’s Clean Elections Fund, a popular target for legislative Republicans and business interests, who have long sought to undermine Arizona’s system of public campaign financing.

Campaigns and activists would also have more time to make use of their reinstated ballot collection abilities if the act passes. Election officials currently mail out early ballots on the 27th day before an election. The act would change that to 40 days before the election.

Rolling back restrictions on direct democracy

The other two provisions of the act deal with the citizen initiative process. 

Legislators in 2014 nearly unanimously passed a bill that included a provision allowing initiative opponents to subpoena petitioners for any reason. If the petitioners – many of whom live outside of Arizona and travel state to state working on various ballot measure drives – don’t show up to court, all of the signatures they collected are thrown out.

Chavez called the law a “loophole that special interests and ballot measure opposition” uses to invalidate signatures. Opponents of a proposed ballot measure to ban anonymous campaign spending widely known as “dark money” used that law to knock the proposed Outlaw Dirty Money initiative off the ballot in 2018.  

Under the proposed initiative, opponents could still subpoena petition gatherers during legal challenges to ballot measures, but there must be a “good faith basis” to issue the subpoena. 

And instead of automatically voiding all signatures collected by a petitioner who doesn’t appear in court, the proposal would allow “one or more” signatures to be invalidated. Even if a petition circulator doesn’t respond to a subpoena, challengers must still must establish an independent legal basis to invalidate their signatures.

Over the past several years, GOP lawmakers have enacted additional rules for petition gatherers, requiring them to register with the Secretary of State’s Office, to provide more information and jump through more hoops, such as signing notarized affidavits. Failure to comply with those requirements can result in the disqualification of any signatures they collect.

The Democracy and Accountability Act would scrap several of those requirements, including some that Republican lawmakers and Gov. Doug Ducey enacted earlier this year through Senate Bill 1451

Paid petition circulators and any from out of state will still have to register before collecting signatures. But they would no longer have to use circulator registration numbers assigned by the secretary of state’s office. They would be required to provide less contact information to state election officials. And they would have to sign a declaration attesting that the information they provide is true, not a notarized affidavit. 

The increased registration requirements enacted by the legislature are especially problematic for ballot measure campaigns due to a 2017 law imposing a judicial standard known as strict compliance on citizen initiatives.

The standard requires rigid adherence to the laws governing initiatives, making it easier for opponents to keep them off the ballot over technicalities. Historically, Arizona courts applied the standard only to citizen referenda, which seek to overturn laws passed by the legislature, while imposing a looser standard known as “substantial compliance” on initiatives.

Constitutional prohibitions don’t apply

The Arizona Constitution bars proposed constitutional amendments from packaging unrelated provisions together in the same initiative, a restriction known as the Separate Amendment Rule. And the Single Subject Rule similarly prohibits the lawmakers from doing the same with bills passed by the legislature.

But neither of those rules would apply to the wide-ranging Democracy and Accountability Act because they apply only to constitutional amendments or statutory changes made by the legislature, not statutory amendments made via citizen initiative. The Arizona Supreme Court reiterated that precedent in 2016, when it wrote, “This Court has long recognized that the Single Subject Rule applies only to acts by the legislature; it does not apply to initiatives.” 

Due to a 1998 amendment to the Arizona Constitution known as the Voter Protection Act, lawmakers will be effectively barred from tinkering with the Democracy and Accountability Act if it passes, nor will it be able to re-establish the laws it repeals. The constitution requires a three-fourths majority in each legislative chamber to amend a voter-approved law, and only permits changes that further the intent of the voters.

GOP has claimed fraud, without evidence

Proponents of the restrictions to the initiative process tout them as fraud prevention measures, though they have consistently failed to cite examples of the kinds of malfeasance they’re attempting to prevent. And Republican lawmakers have declined to add similar restrictions for candidate signatures, despite several high-profile, documented instances of signature fraud involving candidates in 2018.

GOP lawmakers, the Arizona Chamber of Commerce and Industry and other advocates have justified using stricter standards for citizen initiatives than candidates on the grounds that voters can simply remove candidates from office at the next election if they feel they made a mistake. But if a voter-protected law is nearly possible to amend, regardless of how badly a change might be needed.

Garrick Taylor, a spokesman for the Arizona Chamber of Commerce, said the Chamber would oppose rolling back the requirements created by SB1451, which was the group’s legislation. He noted that the subpoena legislation wasn’t pushed by the Chamber, but was wary of the proposal to eliminate it.

“I would have to see the language. But we’d be skeptical of something that would lessen protections around our citizen initiative process,” Taylor said.

Sen. Michelle Ugenti-Rita, R-Scottsdale, who sponsored the legislation banning ballot harvesting, questioned why people would want to reinstate what she called a “very deceitful election tactic.”

“It reinforces my point that this is something that they rely on instead of relying on people to motivated to vote for their candidates and causes based on the merits of the issues,” Ugenti-Rita said.

The campaign plans to file the initiative with the Secretary of State’s Office on Tuesday.

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Jeremy Duda
Jeremy Duda

Associate Editor Jeremy Duda is a Phoenix native and began his career in journalism in 2003 after graduating from the University of Arizona. Prior to joining the Arizona Mirror, he worked at the Arizona Capitol Times, where he spent eight years covering the Governor's Office and two years as editor of the Yellow Sheet Report. Before that, he wrote for the Hobbs News-Sun of Hobbs, NM, and the Daily Herald of Provo, Utah. Jeremy is also the author of the history book “If This Be Treason: the American Rogues and Rebels Who Walked the Line Between Dissent and Betrayal.”