Ducey stacked the Supreme Court. In return, it diminished the power of the people while expanding the power of his allies.

March 15, 2022 9:30 am

A supporter holds a sign at the announcement of the Invest in Education Act. Photo by Jerod MacDonald-Evoy | Arizona Mirror

Gov. Doug Ducey and his wealthy special interest pals were absolutely gleeful last week when the voter-approved education initiative known as the Invest in Education Act was overturned.

Ducey & Co. worked overtime to ensure that nearly $900 million in additional education dollars will never reach our classrooms and that our tragic underfunding of special education programs, our bottom-of-the-barrel per-pupil funding, and our teacher shortage crisis continue.

But it’s important for Arizonans to understand that schoolchildren and teachers are not the only ones adversely affected by this decision.

Our state constitution and the right of all Arizona citizens to create policy via the ballot has been greatly diminished, as well.

The presiding judge in the case, John Hannah, noted that he had no choice but to rule against the law after the Arizona Supreme Court remanded the case to his courtroom and applied a narrow condition to his ruling.

Hannah was asked to determine if the monies from Proposition 208 would, at any point, exceed the educational expenditure limit, and if so, then determine the law unconstitutional.

But as Hannah opined, while the monies from Prop. 208 would exceed the cap in the upcoming fiscal year, there was no way to know whether or not the monies would surpass the limit in future years. And, there were multiple reasons to believe it would not.  

For instance, the state legislature could choose to override the expenditure cap just as they had this past year, or it could send voters a referendum to amend the cap, creating a higher dollar amount to include new funding from Prop 208. Citizens could also refer an initiative to the ballot to expand or even scrap the spending limit altogether.

Hannah argued that the court should have allowed those scenarios to play out, noting that the court’s ruling was a “muddle of law and politics” that effectively gave legislators the upper hand.

Hannah quoted a previous court opinion, which stated, “The courts ‘ought not to prematurely enter the political arena to referee’ political disputes between political actors who have not yet ‘exercised available political means’ to settle the dispute.”

Yet it appears that is exactly what the Supreme Court did.

Hannah encouraged the Invest in Arizona coalition to appeal the decision, though I can understand if it decides to simply cut its losses, believing the deck is stacked against it.

In 2016, Ducey expanded the court from five to seven justices, despite objections from the court’s justices, media outlets and every Democratic legislator.

Ducey has now appointed five of the seven justices, which included several controversial picks, such as Clint Bolick, who spent nearly a decade as a litigator for the Goldwater Institute, a powerful special interest group with a long history of working to privatize public schools and one of the parties challenging Prop. 208.  

Ducey also appointed former Maricopa County Attorney Bill Montgomery, a close ally of the disgraced former sheriff, Joe Arpaio, and someone many considered far too political for the court.

Montgomery was originally rejected by the judicial nominating committee, but that didn’t deter Ducey. He simply replaced the members who objected to Montgomery with ones favorable to him. And as a result, the court has lurched further to the right even as our population has grown more moderate.  

That’s great news for the wealthy special interest groups who spend handsomely to overturn voter-approved initiatives, but terrible news for our state and our citizens, and it’s why I hope the Invest in Education coalition decides to appeal the ruling.

If the court reverses the decision, Arizonans can breathe a sigh of relief, confident that the court has not fallen prey to overt political pressure from Ducey and his powerful allies.

However, if this egregious ruling remains, then Arizonans have reason to be alarmed and should take action to vote out the offending justices when they stand for retention.

Arizona does not need a politicized court. Nor do we need more power in the hands of politicians and less power in the hands of voters.

For the good of our state, the Supreme Court needs to right this wrong. 

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Julie Erfle
Julie Erfle

Julie Erfle hails from North Dakota, but has called Arizona home for more than twenty years. She began her career in Phoenix as a creative services producer at KPHO-TV5 and 3TV. Blending her background in communications with her passion for community activism, Julie launched the political blog Politics Uncuffed in 2011, and began working as a communications director and consultant on candidate and initiative campaigns. She is the former executive director of Progress Now Arizona, a progressive communications and advocacy non-profit, and a fellow with the Flinn-Brown Arizona Center for Civic Leadership and Leading for Change.