The Arizona Supreme Court on Tuesday declined to hear a challenge to a 2017 law requiring citizen initiative campaigns to strictly comply with statutory requirements. Previously, the courts had imposed a lesser standard of substantial compliance, meaning initiatives wouldn’t be barred from the ballot over minor defects on issues such as the format of petitions or the information that voters must provide when they sign them.
Several people and organizations that have used the initiative process in the past, including the Animal Defense League of Arizona, Arizona Advocacy Network, and Planned Parenthood, argued that the law violates the Arizona Constitution by infringing on the judiciary’s authority. The courts had long established that initiatives should be subject to substantial compliance while citizen referenda, which refer laws passed by the Legislature to the ballot, are subject to strict compliance.
But the Arizona Court of Appeals ruled in May that the case wasn’t ripe for review because none of the plaintiffs were involved in initiative campaigns that were affected by the new law, meaning they hadn’t suffered any harm. Five of the Supreme Court’s justices agreed and declined to hear the appeal. Justices Clint Bolick and Andrew Gould disagreed, but it takes three justices to review a case.
The lawsuit was one of several that challenged the 2017 strict compliance law. Attorneys for three ballot measures from the 2018 election cycle challenged the law’s constitutionality, but the Supreme Court declined to weigh in and decided those cases on other issues.
Roopali Desai, an attorney for the plaintiffs, said there’s a clear separation-of-powers problem with the law, but was pessimistic that the Supreme Court will eventually take up the issue. When opponents sue to keep initiatives off the ballot, they don’t cite strict compliance as the reason, she said. They cite other issues, and it’s up to the judge to decide if an initiative complied.
The court has established that the strict compliance law isn’t subject to challenge unless there’s an actual citizen initiative involved. But it will always have the ability to sidestep that issue, as it did in several cases this year, Desai said, making it difficult to challenge the law’s constitutionality in future cases.
“So, it’s this perpetual catch-22,” she said.