McLaughlin v. Bennett

HURWITZ, Vice Chief Justice,

concurring.

¶ 20 In Arizona Together v. Brewer, this Court “clear[ed] out a considerable amount of our jurisprudential underbrush” concerning Article 21, Section 1. 214 Ariz. 118, 127 ¶ 31, 149 P.3d 742, 751 (2007) (Hurwitz, J., concurring). Today’s opinion faithfully applies Arizona Together. I write separately because, as in Arizona Together, I am concerned with the Court’s focus on four specific “objective factors” in determining whether a proposed amendment violates Article 21, Section 1. See id. at 129 ¶ 43, 149 P.3d at 753.

I.

¶ 21 Because most proposed constitutional amendments will involve one general topic, the critical question in separate amendment cases is typically whether the proposed amendment’s various provisions also are logically interrelated. Id. at 127-28 ¶¶ 33-36, 149 P.3d at 751-52. Proposition 108’s proponents urge that it meets this test because its provisions all relate to voting by secret ballot. But, as the Court notes today, see ¶ 11 swpra, although this may suffice to establish topicality, it does not demonstrate interrelatedness. Were such the case, a constitutional amendment affirming the use of secret ballots in public elections and requiring this Court to elect the Chief Justice in the same way would qualify as a single amendment.

¶ 22 Interrelatedness requires something more, a logical relationship of the various provisions with each other, so that they “constitute a consistent and workable whole on the general topic” and “logically speaking, they should stand or fall as a whole.” Kerby v. Luhrs, 44 Ariz. 208, 221, 36 P.2d 549, 554 (1934). Proposition 108 fails that test.

¶ 23 Proposition 108, as the Court notes, has two independent provisions. The first affirms the guarantee of secrecy in public elections already contained in Article 7, Section 1, albeit without mentioning that such a guarantee already exists. Perhaps inadvertently, this same provision also seemingly abrogates the legislature’s existing power under Article 7, Section 1 to authorize secret elections through mechanisms other than ballots, such as voting machines. The second provision in Proposition 108 creates an entirely new constitutional right to vote by secret ballot in union representation designations or authorizations.

¶ 24 The provision relating to public elections simply has no effect on the one relating to union designations. The efficacy of the provision relating to unions is neither enhanced nor diminished by the provision relating to public elections. Nor is Proposition 108 an integrated solution to a perceived problem. This stands in stark contrast to Arizona Together, in which one provision defined marriage and the other provision made that definition exclusive in terms of legal status. Arizona Together, 214 Ariz. at 123 ¶ 17, 149 P.3d at 747. That amendment connected its provisions as a logical whole. Here, the whole is nothing more than the bare sum of its unrelated parts. Neither part operates in tandem with the other, see id. at 122 ¶ 12, 149 P.3d at 746, nor is there any logical reason why the amendment should “stand or fall as a whole,” Kerby, 44 Ariz. at 221, 36 P.2d at 554. Proposition 108 thus clearly falls afoul of Article 21, Section 1, as the Court today concludes.

¶ 25 Once we have concluded that there is no logical relationship between the two provisions in Proposition 108, “[t]hat conclusion should end the analysis.” Arizona Together, 214 Ariz. at 128 ¶ 39, 149 P.3d at 752 (Hur-witz, J., concurring). The four Arizona Together factors may sometimes confirm that conclusion, but they should not drive it.

¶ 26 Moreover, I am concerned that the Court’s focus on the four factors potentially adds unnecessary uncertainty to our separate amendment analysis. Arizona Together’s first prong, “facial relatedness,” originated in Kerby, in which we noted that the proposed amendment had “at least three distinct propositions ... no two of which are necessarily required for a proper operation of the third. On their face they have no direct relation to each other.” Kerby, 44 Ariz. at 221-222, 36 P.2d at 554. “Facial relatedness” thus seems to me to be not one of four separate factors to be used in evaluating whether a proposition involves a single amendment, but rather the ultimate question to be decided. Put differently, “facial relatedness” is merely another way of stating that the various provisions “constitute a consistent and workable whole on the general topic.” See id. at 221, 36 P.2d at 554.

¶ 27 The Court today concludes that Proposition 108 fails the second prong in Arizona Together, as it does not involve the same portion of the Constitution in which the right to secrecy in public elections is treated, Article 7. This, however, is largely a matter of drafting and fortuity — Proposition 108 would seem to me to violate the separate amendment rule every bit as much if its proponents had suggested amending Article 7 instead of Article 2.

¶ 28 Similarly, the third Arizona Together inquiry — whether the proposition’s various topics have been considered together historically — is of less than compelling force. Our Constitution and statutes have not dealt with how workers make union representation decisions, presumably because that topic is, as the Court notes in ¶ 14, the province of federal law. Although the fact that topics have been treated together historically provides some evidence of logical interrelatedness, the converse is not necessarily true. When a proposed amendment tries to analogize an existing constitutional right (in this case, the right to secrecy in public elections) to a proposed new right, the new right will almost never have been previously considered together with the old one.

¶ 29 The last Arizona Together factor, whether the various provisions are “qualitatively similar in their effect on the law,” 214 Ariz. at 123 ¶ 16,149 P.3d at 747, also strikes me as being of questionable practical application in most eases, at least in its original formulation. As the Court noted in Arizona Together, id., the “qualitatively similar” factor came from Slayton v. Shumway, 166 Ariz. 87, 800 P.2d 590 (1990). In Slayton, the Court emphasized that the various provisions of a proposed amendment relating to victims’ rights were similar because they were all procedural in nature. See id. at 91-92, 800 P.2d at 594-95. Here, the provisions of Proposition 108 are clearly both substantive and hence would easily pass through the Slayton screen.

¶ 30 As it did in Arizona Together, 214 Ariz. at 123 ¶ 17, 149 P.3d at 747, the Court today interprets the “qualitatively similar” factor in a somewhat broader fashion than in Slayton, accurately concluding that although both provisions of Proposition 108 are substantive in nature, see ¶¶ 15-16 supra, they have very different — and unrelated-effects. But to me this is simply another way of stating that these provisions neither are logically related to each other nor constitute a single constitutional amendment.

¶ 31 As noted above, I do not suggest that the factors set forth in Arizona Together are not useful in an Article 21, Section 1 analysis. But I worry about our recent focus on these factors, some of which may be manipulated by shrewd drafters. The four Arizona Together factors should not obscure — or substitute for analysis of — the real question, which is whether the various provisions of the proposed amendment, in addition to concerning the same general topic, are also “all logically related to each other” and form an integrated proposition deserving a single up or down vote from the people. See Tilson v. Mofford, 153 Ariz. 468, 472, 737 P.2d 1367, 1371 (1987).

II.

¶32 I add a final word. The separate amendment provision in Article 21, Section 1 was “intended to prevent the pernicious practice of ‘logrolling’ in the submission of a constitutional amendment.” Kerby, 44 Ariz. at 214, 36 P.2d at 551. The danger of logrolling is heightened when one provision of an amendment is already in the Constitution. What is most troublesome about Proposition 108 is that the Constitution has always protected secrecy in voting in public elections. But as worded, Proposition 108 suggests that a “no” vote, in addition to rejecting the mandate for secret ballots in union representation decisions, would also jeopardize the existing constitutional guarantee of secrecy in public election voting. This strikes me as precisely the sort of logrolling that Article 21, Section 1 was designed to avoid.