435,000 reasons to pay attention to the judges on your ballot

Invest in Ed
The campaign for the Invest in Education Act prepares to submit its petitions on July 2, 2020. Photo courtesy Stand for Children Arizona/Twitter.

More than 435,000 Arizonans signed the Invest in Education petition. That’s an enormous number considering the majority of the signatures were gathered during a pandemic, when Arizonans spent most of their time locked indoors and away from public events.

But the nearly half a million voters who wanted a chance to vote for increased funding for public education were overruled by one individual: Maricopa County Superior Court Judge Christopher Coury.

Coury’s name is one that public education supporters won’t soon forget, especially this November when he’s up for a retention vote that determines whether he stays on the bench.

Last week, he booted Invest in Ed from the ballot, claiming its 100-word summary failed to include, in detail, every single provision in the measure.

By law, campaigns must circulate petitions that include a general summary of the principal provisions of an initiative. The summary cannot exceed 100 words.

In addition to the summary, the full text of the initiative must be attached to the petition as well as another statement that reads in part, “This is only a description of the proposed measure … It may not include every provision … You have the right to read or examine the title and text before signing.”

Coury’s ruling was so prescriptive that it would have rendered any summary inadequate because there was no possible way to include everything in the judge’s orders in 100 words or less.

Two years ago, Invest in Ed was kicked off the ballot for similar reasons: The Arizona Supreme Court deemed the summary inaccurate and confusing, and pundits and observers seemed split along ideological lines.

But this time around, there doesn’t seem to be a debate. In fact, this time around, progressive, moderate and conservative columnists all seem to agree that Coury’s ruling was egregious and should be overturned.

That type of consensus is a rare feat in Arizona politics.  

But columnists and public education advocates aren’t the only folks throwing shade on Coury’s decision. At the end of last week, fellow judges took aim at his logic when denying similar attempts to toss initiatives based on related claims of misleading or inadequate 100-word summaries.

Maricopa County Superior Court Judge James Smith ruled against the challenge to the marijuana legalization initiative, noting that, “…if everything in an initiative is a ‘principal provision,’ then nothing is. Requiring one paragraph to describe every effect of an initiative could gut citizens’ co-equal right to legislate.”

Smith also commented on an assertion that the marijuana summary misled voters, noting that the petitioners did not supply any evidence to demonstrate this, such as a survey, but rather made hypothetical arguments.

Hypothetical arguments were the core of Coury’s opinion. He claimed — with no proof to support it — that Arizonans who signed the Invest in Ed petitions were likely confused by the term “surcharge.” He seems to believe voters aren’t smart enough to understand that a surcharge is a tax.

Coury also made the dubious claim that voters might not have signed the petition had they known the exact percentage of funds that would be used to increase teacher pay. Never mind that that information was listed in the full text, which was stapled to the petition.

Another Maricopa County Superior Court judge, Joseph Mikitish, who ruled on a challenge to a sentencing reform initiative, noted that voters who questioned the specifics of a summary could simply review the entirety of the initiative before signing. Summaries do not need to address the arguments of the opposition, he ruled, and signers should expect “a certain level of puffery” in the summary.  

The Invest in Ed campaign is appealing Coury’s decision to the Arizona Supreme Court, which is stacked with Gov. Doug Ducey’s appointees and most of the same individuals who kicked the last Invest in Ed initiative off the ballot.

What’s different this time, however, is that other lower court justices have addressed some of the same arguments as those presented to Coury and arrived at a much different conclusion — namely, that courts must give campaigns leeway to make general summary descriptions or risk infringing on the constitutional right of Arizonans to make laws via citizens initiatives. 

It’s anyone’s guess how the justices on the high court will rule, but I’ll be paying extra attention to the decisions of three of them: Robert Brutinel, Andrew Gould and John Lopez IV. Those three, like Coury, are up for a retention vote this November.

Though voters tend to zoom by the judges on the ballot, voting yes across the board or skipping them altogether, this year, we have 435,000 reasons to pay attention.