Arizonans for Second Chances v. Hobbs

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
ARIZONANS FOR SECOND CHANCES, REHABILITATION, AND PUBLIC SAFETY
(SPONSORED BY ASJ ACTION FUND); SMART AND SAFE ARIZONA; INVEST IN
EDUCATION (SPONSORED BY AEA AND STAND FOR CHILDREN); AND SAVE
O UR SCHOOLS ARIZONA,
Petitioners,
V.
KATIE H OBBS, IN HER OFFICIAL CAPACITY AS ARIZONA SECRETARY OF
STATE,
Respondent.
No. CV-20-0098-SA
Filed September 4, 2020
Special Action
JURISDICTION ACCEPTED; RELIEF DENIED
COUNSEL:
Roopali H. Desai, D. Andrew Gaona, Kristen Yost, Coppersmith
Brockelman PLC, Phoenix, Attorneys for Arizonans for Second Chances,
Rehabilitation, and Public Safety, Smart and Safe Arizona, Invest in
Education, and Save our Schools Arizona
Roy Herrera, Daniel A. Arellano, Ballard Spahr LLP, Phoenix, Attorneys for
Katie Hobbs in her official capacity as Arizona Secretary of State
ARIZONANS FOR SECOND CHANCES, ET AL. V. HOBBS
Opinion of the Court
Mark Brnovich, Attorney General, Joseph A. Kanefield, Chief Deputy &
Chief of Staff, Brunn (Beau) W. Roysden, III, Division Chief, Drew C.
Ensign, Deputy Solicitor General, Jennifer J. Wright, Anthony R.
Napolitano, Robert J. Maker, Assistant Attorneys General, Phoenix,
Attorneys for Intervenor Mark Brnovich
David J. Cantelme, D. Aaron Brown, Cantelme & Brown, P.L.C., Tempe,
Attorneys for Intervenors Speaker of the Arizona House of Representatives
and President of the Arizona Senate
Timothy Sandefur, Christina Sandefur, Scharf-Norton Center for
Constitutional Litigation at the Goldwater Institute, Phoenix, Attorneys for
Amicus Curiae Goldwater Institute
Timothy A. LaSota, Timothy A. LaSota PLC, Phoenix, Attorneys for Amicus
Curiae Arizona Free Enterprise Club
Daniel J. Adelman, Arizona Center for Law in the Public Interest, Spencer
G. Scharff, Scharff PLLC, Phoenix, Attorneys for Amicus Curiae
Professional Fire Fighters of Arizona, Will Humble, and Bradley J. Cohen,
et. al.
Dennis Wilenchik, Lee Miller, John D. (Jack) Wilenchik, Wilenchik &
Bartness PC, Phoenix, Attorneys for Amicus Curiae Arizona Republican
Party
Paul F. Eckstein, Austin C. Yost, Perkins Coie LLP, Phoenix, Attorneys for
Amicus Curiae Paul Bender
Shawn K. Aiken, Shawn Aiken PLLC, Phoenix, Attorneys for Amicus
Curiae Hon. Kate Gallego, in her official capacity as Mayor, City of Phoenix,
Hon. Coral Evans, in her official capacity as Mayor, City of Flagstaff, and
Hon. Regina Romero, in her official capacity as Mayor, City of Tucson
Lisette Flores, Arizona State Senate, Rhonda L. Barnes, Jane Ahern, Arizona
House of Representatives, Phoenix, Attorneys for Amicus Curiae Senate
Minority Leader David Bradley and House Minority Leader Charlene
Fernandez
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ARIZONANS FOR SECOND CHANCES, ET AL. V. HOBBS
Opinion of the Court
JUSTICE GOULD authored the opinion of the Court, in which CHIEF
JUSTICE BRUTINEL, and JUSTICES LOPEZ, BEENE, and MONTGOMERY
joined. JUSTICE LOPEZ, joined by JUSTICE MONTGOMERY, filed a
concurring opinion. VICE CHIEF JUSTICE TIMMER concurred in Parts II
and III and dissented as to Parts IV–VII. JUSTICE BOLICK dissented from
the grant of jurisdiction.
GOULD, J., opinion of the Court:
¶1 Article 4, part 1, section 1(9) of the Arizona Constitution
(“Section 1(9)”) outlines a specific procedure for collecting and verifying
initiative petition signatures:
[E]very sheet of every such petition containing signatures
shall be verified by the affidavit of the person who circulated
said sheet or petition, setting forth that each of the names on
said sheet was signed in the presence of the affiant and that in the
belief of the affiant each signer was a qualified elector of the
state, or in the case of a city, town, or county measure, of the
city, town, or county affected by the measure so proposed to
be initiated or referred to the people. (Emphasis added.)
¶2 This constitutional provision, by its terms, requires initiative
signatures to be collected in person on physical sheets of paper. However,
Petitioners ask us, in the face of the current Coronavirus Disease
(“COVID-19”) pandemic, to eliminate Section 1(9)’s procedure and replace
it with E-Qual, the Secretary of State’s online signature gathering system.
On May 13, 2020, we issued an Order (“May 13 Order”) denying
Petitioners’ request. This Opinion explains the basis for that Order.
¶3 We hold that the Secretary of State (“Secretary”) may not
accept or file initiative signatures submitted through E-Qual because it does
not comply with Section 1(9)’s in-person procedure for gathering and
verifying such signatures. We also hold that Section 1(9) does not, as
applied to Petitioners during the COVID-19 pandemic, violate their rights
under article 4 of the Arizona Constitution, the First and Fourteenth
Amendments to the United States Constitution, or the Arizona
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Arizonans For Second Chances, et al. v. Hobbs
Opinion of the Court
Constitution’s guarantees of equal protection, due process, and free speech.
Despite the current limitations on social interactions caused by COVID-19,
Section 1(9)’s in-person procedure does not prevent a reasonably diligent
initiative proponent from gaining access to the ballot. As a result, Section
1(9) does not impose a severe burden on Petitioners’ voting rights and is
justified by the state’s important regulatory interest in protecting the
integrity of initiative elections.
¶4 Further, we hold that Section 1(9) does not unconstitutionally
impinge upon Petitioners’ free speech right to engage in one-on-one
communications with eligible voters. Any limitations on such interactive
communications are caused by the virus, and not Section 1(9). Indeed, in
contrast to E-Qual’s remote signature-gathering system, Section 1(9)’s
in-person requirement is designed to facilitate in-person communications
between circulators and potential signers, not limit them.
¶5 Finally, we hold that even if Section 1(9) imposes a severe
burden on Petitioners’ constitutional rights, it survives strict scrutiny.
Section 1(9) advances the state’s compelling interest in protecting the
integrity of initiative elections, and E-Qual does not provide a viable
alternative to Section 1(9)’s signature verification procedure.
¶6 At the time we issued our May 13 Order, we concluded that
despite the onset of COVID-19, Petitioners could, by exercising reasonable
diligence, comply with Section 1(9) and gain a place on the ballot. When
Petitioners filed their special action, they had approximately four months
to collect signatures before the July 2 filing deadline. Respondents claimed
that Petitioners could safely collect in-person signatures during this period.
In response, Petitioners argued that such collection efforts were “a practical
impossibility.” In short, rather than presenting evidence of their diligent
efforts to comply with Section 1(9), they simply advised us that without
access to E-Qual, their “signature gathering will halt.” We disagreed.
¶7 COVID-19 did not eliminate face-to-face political activity in
this country. And although recent developments do not provide a
justification for our May 13 Order, the fact is that despite not having the use
of E-Qual, three of the four Petitioners were able to collect enough
signatures to satisfy the minimum signature requirement. Indeed,
Petitioners were able to collect hundreds of thousands of signatures after the
onset of the virus.
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Arizonans For Second Chances, et al. v. Hobbs
Opinion of the Court
¶8 Our decision today protects the people’s right to legislate by
initiative. The framers of our Constitution never sought to guarantee every
initiative, including erroneous and fraudulent measures, a place on the
ballot. Rather, as part and parcel of the initiative right, they adopted Section
1(9) to protect the integrity of initiative elections by ensuring that only valid
initiatives made it on the ballot. The cornerstone of this protection is Section
1(9)’s requirement that circulators personally witness every signature made
on a petition sheet.
¶9 But our decision preserves far more than the right to legislate
by initiative. The people of this state look to us to uphold the law, and we
must act consistently with that imperative. Petitioners claim that
COVID-19 makes it necessary, this one time, to set aside Section 1(9). But
they fail to see the long-term damage such a decision would cause to our
system. Applying a rule of necessity here, we would justify setting aside
other laws and constitutional protections whenever a crisis or emergency
arises. Indeed, if COVID-19 justifies setting aside Section 1(9) today, then
perhaps tomorrow it will be used to set aside other constitutional
protections. In short, our decision would lie “about like a loaded weapon
ready for the hand of any authority that can bring forward a plausible claim
of an urgent need.” Korematsu v. United States, 323 U.S. 214, 246 (1944)
(Jackson, J., dissenting).
¶10 We do not suggest that Section 1(9)’s verification procedure is
the best or only means to protect the integrity of the initiative process.
Indeed, perhaps Petitioners are correct in asserting that even absent
COVID-19, they, like candidates, should have had “access to E-Qual from
the get-go.” But Section 1(9) is the law and we will not re-write the
Constitution in the middle of an election simply because some find it “too
inconvenient for present-day operation.” W. Devcor, Inc. v. City of Scottsdale,
168 Ariz. 426, 432 (1991). If the people of Arizona believe Section 1(9) is
outdated, it is their right, if they wish, to amend it.
¶11 We sometimes forget the sacrifices it took to create and
preserve a nation based on the rule of law. It is easy to take for granted.
And lest we forget, the people who established this system faced
emergencies too. But they understood the dangers posed by governing by
necessity, especially in times of crisis. We should respect and embrace their
wisdom.
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Opinion of the Court
I.
¶12 The Petitioners are four political action committees (“PACs”)
seeking to place statutory initiatives on the November 2020 ballot. They
are: (1) Second Chances, Rehabilitation, and Public Safety (“Second
Chances”); (2) Invest in Education; (3) Smart and Safe Arizona; and (4) Save
Our Schools Arizona (“SOSAZ”). Second Chances, Invest in Education,
and SOSAZ filed their initiative applications and began gathering petition
signatures between February 18 and February 26, 2020. See A.R.S. § -111(A)
(stating that before a PAC can begin collecting signatures it must file an
application with the Secretary). As of April 1, the date Petitioners filed their
special action, Second Chances had gathered 66,000 signatures, while Invest
in Education and SOSAZ had gathered 85,000 and 50,000 signatures,
respectively. In contrast, Smart and Safe Arizona filed its application on
September 26, 2019 and, by April 1, 2020, had gathered 300,000 signatures,
surpassing the constitutionally required minimum to qualify for the ballot.
See Ariz. Const. art. 4, pt. 1, §§ 1(2), (7) (providing statutory initiatives must
be signed by ten percent of the votes cast for governor in the most recent
election to qualify for the ballot); Initiative Referendum and Recall, Ariz. Sec’y
of State, https://azsos.gov/elections/initiative-referendum-and-reca ll
(last visited Aug. 12, 2020) (stating that, to qualify for the November 2020
ballot, initiative proponents must collect 237,645 signatures by July 2,
2020). 1
¶13 Beginning in March 2020, face-to-face communications and
large public events were understood to facilitate the spread of COVID-19,
and “social distancing” entered our lexicon. As a result, the Governor
issued an executive order on March 30 suspending non-essential in-person
activities. Executive Order 2020-18 (Mar. 30, 2020) (“Stay-at-Home Order”).
The Stay-at-Home Order did not apply to “constitutionally protected
activities,” such as petition circulation efforts, but its restrictions made
contacting potential signers more difficult. Id. The Stay-at-Home Order
remained in effect until May 16, 2020. Id.; Executive Order 2020-36 (May
12, 2020) (lifting order). 2
1 We may take judicial notice of the Secretary’s website. Pedersen, 230 Ariz.
at 559 ¶ 15 (citing Ariz. R. Evid. 201(b), (b)(2) (permitting court to take
judicial notice from sources whose accuracy cannot reasonably be
questioned)).
2 On June 29, the Governor re-imposed some restrictions, including
temporarily closing bars, gyms, and movie theaters. Executive Order
2020-43 (June 29, 2020).
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Arizonans For Second Chances, et al. v. Hobbs
Opinion of the Court
¶14 Faced with the unexpected difficulties of collecting in-person
signatures during COVID-19, Petitioners filed this special action. As relief,
Petitioners asked this Court to direct the Secretary to: (1) allow them to use
E-Qual; and (2) accept and file signatures obtained using that system.
II.
A. Jurisdiction
¶15 Rule 3 of the Arizona Rules of Procedure for Special Actions
states that “only” certain “questions may be raised in a special action.”
Here, State Intervenors argue that we lack jurisdiction because Petitioners
have failed to specifically allege any of these “questions.” However, we
conclude that because Petitioners have sufficiently alleged a mandamus
action, and our jurisdiction to issue writs of mandamus derives from the
Arizona Constitution, we have jurisdiction.
¶16 “An action is in the nature of mandamus if it seeks to compel
a public official to perform a non-discretionary duty imposed by law.”
Stagecoach Trails MHC, L.L.C. v. City of Benson, 231 Ariz. 366, 370 ¶ 19 (2013).
We have original jurisdiction to issue writs of mandamus and “exercise this
jurisdiction through the special action procedure.” Ariz.
Const. art. 6, § 5(1); Fairness & Accountability in Ins. Reform v. Greene, 180
Ariz. 582, 584 n.1 (1994) (“[S]pecial action relief is the modern equivalent of
[a] common law writ[] such as mandamus. . . .”). Rule 3(a) “sets forth the
traditional functions of the writ of mandamus” by permitting petitioners to
compel a state officer to perform a duty required by law. Ariz. R.P. Spec.
Act. 3(a) State Bar Committee Note (a).
¶17 Here, Petitioners do not provide a textbook example of how
to allege a mandamus action. Jurisdictional statements are important,
particularly when a party is seeking special action relief. But here,
Petitioners neither cite Rule 3(a), nor do they provide a clear and concise
statement addressing our jurisdiction in this case. We caution parties to
avoid this practice in the future.
¶18 Nevertheless, reading Petitioners’ briefs as a whole, we
conclude that they have properly alleged a mandamus action. Specifically,
throughout their briefs, Petitioners assert that the Secretary has refused to
perform her constitutional duty to accept and file E-Qual petitions, and that
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Arizonans For Second Chances, et al. v. Hobbs
Opinion of the Court
this Court should order her to perform that constitutional duty. 3 See A.R.S.
§ 19-122(A) (stating that a party may bring a writ of mandamus to compel
the Secretary to “accept and file” initiative petitions); Adams v. Bolin, 77
Ariz. 316, 323 (1954) (addressing whether to grant mandamus to compel the
Secretary to accept a candidate’s nomination petition based on the
Secretary’s legal obligation to do so); see also Ariz. R.P. Spec. Act. 2(a)(1)
(stating that “[a]ny person who previously could institute an application
for a writ of mandamus” prior to the adoption of the special action rules
“may institute proceedings for a special action”).
¶19 Additionally, the fact that we must resolve whether the
Secretary is constitutionally required to accept such petitions does not, as
State Intervenors contend, deprive this Court of jurisdiction. Rather, one
purpose of a mandamus action is to determine the extent of a state official’s
legal duties. See Pedersen v. Bennett, 230 Ariz. 556, 558 ¶ 5, 560 ¶¶ 18, 21
(2012) (determining, in the context of a mandamus action and assessing
reasonableness of attorney fees under A.R.S. § 12-2030(A), the scope of the
Secretary’s legal duty to accept and file initiative petitions).
¶20 Other factors also support accepting special action
jurisdiction here. This case involves primarily a legal issue of
constitutional, statewide importance. See Dobson v. State ex rel., Comm’n on
App. Ct. Appointments, 233 Ariz. 119, 121 ¶ 7 (2013) (finding special action
3 For example, Petitioners request “this Court to exercise its original and
special action jurisdiction and order the Secretary to permit them to gather
initiative petition signatures through E-Qual.” Petitioners claim that “[t]his
result is required by Article IV, principles of equal protection[,] and due
process, and the [Petitioners’] right to free speech.” Similarly, Petitioners
assert that “to protect their rights under Article IV,” they “request that this
Court . . . order[] the Secretary to allow them to collect initiative petition
signatures . . . through E-Qual[] and . . . enjoin[] the Secretary from
enforcing any provision of Arizona law that would preclude [Petitioners’]
use of E-Qual.” Petitioners also expressly cite our “original jurisdiction
over mandamus, injunction[,] and other extraordinary writs to state
officers,” as grounds to order the Secretary to provide them access to
E-Qual, claiming that if she fails to provide such access “in violation of their
constitutional rights,” “she has either failed to perform a required legal
duty or has abused her discretion.” As yet another example, Petitioners
“request that this Court . . . order[] the Secretary to allow them to collect
initiative petition signatures and . . . enjoin[] the enforcement of any
provision of Arizona law that would preclude [their] use of E-Qual.”
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Opinion of the Court
jurisdiction was appropriate to address legal questions of statewide
importance requiring constitutional interpretation). And, at the time
Petitioners filed their special action, there was a need for immediate, final
relief, given the fact that the July 2 deadline for submitting initiative
petitions was rapidly approaching. See Dobson, 233 Ariz. at 121–22 ¶ 8
(considering that immediate, final resolution was necessary to provide
relief); Smoker v. Bolin, 85 Ariz. 171, 172 (1958) (considering whether to grant
mandamus against the Secretary where “time was of the essence and the
matters involved were of great public interest”). Finally, this case presents
a legal issue where most of the key facts, such as the dates Petitioners
started collecting signatures and the number of signatures they have
gathered, are not in dispute. See supra ¶¶ 12–13. See Dobson, 233 Ariz. at
121 ¶ 7 (granting special action jurisdiction where some facts were
disputed, but the resolution did not turn on disputed facts); Brewer v. Burns,
222 Ariz. 234, 237 ¶¶ 8–9 (2009) (granting special action jurisdiction and
noting that the relevant facts were undisputed even though one party
claimed “intense fact questions”).
B. Standing
¶21 State Intervenors also claim that Petitioners lack standing.
Specifically, they claim that Petitioners’ alleged injury—potential denial of
access to the ballot due to difficulty collecting signatures—is caused by
COVID-19 and not the Secretary’s refusal to accept E-Qual petitions.
Second, they assert that the Secretary cannot redress Petitioners’ purported
injury because she lacks the constitutional and statutory authority to file
E-Qual initiative petitions. We note that the Secretary does not contest
Petitioners’ standing. See Rios v. Symington, 172 Ariz. 3, 5 n.2 (1992)
(declining to address standing in a special action involving constitutional
issues of statewide importance where the parties failed to raise the issue).
Nevertheless, because this case involves an issue of statewide importance,
we address whether Petitioners have standing to bring this action.
¶22 Unlike the Federal Constitution, Arizona’s Constitution does
not contain a specific case or controversy requirement. As a matter of
judicial restraint, however, this Court has traditionally required a party to
establish standing. See, e.g., Dobson, 233 Ariz. at 122 ¶ 9 (“[S]tanding is not
jurisdictional, but instead is a prudential doctrine.”); Bennett v. Napolitano,
206 Ariz. 520, 524 ¶ 16, 529 ¶ 41 (2003) (declining review on the merits for
lack of standing). And, despite differences between federal and state
standing requirements, we “have previously found federal case law
instructive.” Bennett, 206 Ariz. at 525 ¶ 22; see also Dobson, 233 Ariz. at 122
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Opinion of the Court
¶ 9 (“[T]his Court is informed, but not bound, by federal standing
jurisprudence.”).
¶23 To establish standing, a party must first establish “a causal
nexus between the defendant’s conduct and [their] injury.” Rothstein v. UBS
AG, 708 F.3d 82, 91–92 (2d Cir. 2013) (quoting Heldman v. Sobol, 962 F.2d 148,
156 (2d Cir. 1992)); see Bennett, 206 Ariz. at 525 ¶ 18 (2003) (stating that “[t]o
establish federal standing, a party invoking the Court’s jurisdiction ‘must
allege personal injury fairly traceable to the defendant’s allegedly unlawful
conduct . . . .’” (quoting Allen v. Wright, 468 U.S. 737, 751 (1984))). This
requirement is a low bar and “easily shown if there is a direct relationship
between the plaintiff and the defendant with respect to the conduct at
issue.” Rothstein, 708 F.3d at 91; see Fla. Democratic Party v. Scott, 215 F. Supp.
3d 1250, 1255 (N.D. Fla. 2016) (finding standing to sue the Florida Secretary
of State for an extension of the voter registration deadline where the
Secretary, as chief election officer, had the power to order compliance with
the state election code and “‘his office sufficiently connect[ed] him with the
duty of enforcing’ the election laws” (quoting Ex Parte Young, 209 U.S. 123,
161 (1908))).
¶24 Petitioners’ alleged injury is fairly traceable to the Secretary.
The Secretary is the only state officer capable of providing access to E-Qual
and filing initiative petitions obtained using that system. See Infra ¶31; Ariz.
Const. art. 4, pt. 1, § 1(4), (9) (stating that “[a]ll petitions submitted under
the power of initiative . . . shall be filed with the [S]ecretary” and “[e]very
initiative . . . petition shall be addressed to the [S]ecretary” (emphasis
added)). However, according to Petitioners, by refusing to perform her
constitutional duty and accept E-Qual petitions, the Secretary has, in the
face of COVID-19, made it impossible for them to qualify for the 2020 ballot.
Supra ¶ 18; see Browne v. Bayless, 202 Ariz. 405, 406 ¶ 1 (2002) (affirming the
trial court’s finding of standing to sue the Secretary of State where a statute
required the Secretary to reject candidates’ nomination papers, but the
constitutionality of the statute was at issue).
¶25 Federal standing also requires the injury be redressable.
Specifically, a party must show that their requested relief would alleviate
their alleged injury. Bennett, 206 Ariz. at 525 ¶ 18. This is a relaxed burden,
and the remedy need not completely cure the alleged harm. See
Massachusetts v. E.P.A., 549 U.S. 497, 525–26 (2007) (finding redressability
because the requested remedy of ordering the EPA to regulate vehicle
emissions would have some effect on the harms caused by global warming).
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Opinion of the Court
¶26 Petitioners’ injury is redressable. Specifically, Petitioners
claim that if we direct the Secretary to perform her constitutional duty and
accept E-Qual petitions, they will be able to collect electronic signatures
during COVID-19 and gain access to the ballot.
III.
¶27 Petitioners initially argue that Section 1(9) does not require
in-person signatures on initiative petitions. As a result, they claim the
Secretary must accept and file signatures collected through E-Qual.
Alternatively, Petitioners argue that because E-Qual substantially complies
with Section 1(9)’s in-person requirement, the Secretary must accept E-Qual
signatures.
¶28 We review de novo the “interpretation and application of
constitutional and statutory provisions regarding initiatives.” Molera v.
Reagan, 245 Ariz. 291, 294 ¶ 8 (2018). Where unambiguous, we apply the
express terms of a constitutional or statutory provision without resorting to
secondary methods of construction. See Heath v. Kiger, 217 Ariz. 492, 494
¶ 6 (2008); Kromko v. Superior Court, 168 Ariz. 51, 57–58 (1991). Further, we
give meaning to “each word, phrase, and sentence . . . so that no part will
be void [sic], inert, redundant, or trivial.” City of Phoenix v. Yates, 69 Ariz.
68, 72 (1949).
A. Requirements of Section 1(9)
¶29 The Arizona Constitution sets forth two primary
requirements for collecting and verifying initiative petition signatures.
First, circulators must personally witness every signature made on a
petition sheet. Specifically, Section 1(9) requires every person signing a
petition “sheet” (the “signer”) to do so “in the presence” of the “affiant”
circulating the petition. Ariz. Const. art. 4, pt. 1 § 1(9) (emphasis added);
see A.R.S. § 19-112(A) (requiring petitions be signed in the presence of the
person circulating the petition), -112(C) (requiring circulator avow to
witnessing the signature before a notary public), -112(D) (requiring a
circulator attach an affidavit swearing, under penalty of perjury, that the
petition was signed in his or her presence).
¶30 Second, petitions must be signed on a physical sheet of paper.
Section 1(9) states that signatures must be made on a “sheet.” To determine
the drafters’ intent regarding the word “sheet,” we consider the meaning of
the word when the Constitution was adopted in 1912. See Antonin Scalia &
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Arizonans For Second Chances, et al. v. Hobbs
Opinion of the Court
Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 78 (2012)
(“Words must be given the meaning they had when the text was adopted.”).
“Sheet,” at the time the framer’s drafted the Constitution, could only mean
a sheet of paper. See, e.g., Webster’s Common School Dictionary (1892)
(defining “sheet” as “a broad piece of paper”); Judicial and Statutory Words
and Phrases (1905) (setting forth same).
¶31 In contrast to Section 1(9)’s detailed procedure for verifying
initiative petition signatures, the Constitution does not prescribe any
procedure for verifying signatures on candidate nominating petitions.
Rather, the legislature has plenary power to prescribe such nominating
procedures for candidates. See Ariz. Const. art. 7, § 10 (“The Legislature
shall enact . . . law[s] . . . provid[ing] for the nomination of candidates.”);
Cavender v. Bd. of Supervisors of Pima Cty., 85 Ariz. 156, 160 (1958) (stating
that the legislature has plenary authority to prescribe nominating
procedures for candidates). Pursuant to this plenary power, the legislature
authorized the Secretary to create E-Qual. See A.R.S. §§ 16-316(A) (stating
that the Secretary may create a system that allows “qualified electors” to
sign candidate nominating petitions for state legislative offices “by way of
a secure internet portal”), -317(A) (setting forth same for municipal and
county offices), -318(A) (setting forth same for federal offices).
¶32 E-Qual permits candidates to circulate their petitions online.
To “sign,” individuals may click on a weblink and provide their name, date
of birth, and either their driver license number or voter registration number,
and the last four digits of their social security number. E-Qual software
then connects to the Secretary’s Arizona Voter Information Database
(“AVID”) and electronically verifies that the person is eligible to sign the
petition. According to the Secretary, when candidates have collected the
requisite signatures, they “simply close out the E-Qual petition” and “the
system . . . generate[s] a coversheet and PDF list or CSV file” containing the
name, address, date of signing, and voter identification number of each
signer. The candidate then prints the petitions, signs a “circulator
statement,” and files the petitions and statement with the Secretary.
¶33 E-Qual’s signature verification procedure is different from,
and does not comply with, Section 1(9)’s procedure. Although Section 1(9)
requires a circulator to collect and verify signatures in person, E-Qual does
not. Rather, E-Qual collects and verifies signatures remotely using an
online portal. Additionally, Section 1(9) directs that signatures be provided
on paper, while E-Qual signatures are provided electronically.
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Opinion of the Court
¶34 Nevertheless, Petitioners claim that E-Qual can comply with
Section 1(9) if “signers” attest to and authenticate their own signatures.
Specifically, they assert that a person “signing” an E-Qual petition can also
act as the “affiant” by avowing that he signed the petition on his own behalf
in his “own presence.” We disagree with this strained and confusing
construction of Section 1(9). Nothing in Section 1(9) suggests that a signer
and affiant can be the same person. Section 1(9) describes two separately
named persons: (1) the “affiant,” who circulates petitions and verifies
signatures; and (2) the “signer,” who signs the petition. By giving the
“affiant” and “signer” separate names and different functions, the framers
made it clear that the signer and affiant are two distinct people. See City of
Mesa v. Salt River Project Agric. Improvement & Power Dist., 92 Ariz. 91, 102
(1962) (declining to read different terms to have the same meaning).
¶35 Petitioners also urge that, because electronic signatures have
become “realities of modern life,” we should adopt a “practical approach”
by construing Section 1(9) to allow for electronic signatures. We agree that
technology has drastically changed since Section 1(9) was adopted in 1912,
but technological advancement and common practice do not justify
rewriting the text of the Constitution. See W. Devcor, Inc., 168 Ariz. at 432(refusing to “read[] out of existence” Section 1(9)’s circulator-verification
requirement that “the framers saw fit to include” and replace it with a
verification by city clerks).
B. Substantial Compliance
¶36 Next, Petitioners argue that E-Qual substantially complies
with Section 1(9). We note that Petitioners waived this argument by failing
to raise it in their opening brief. See United Bank v. Mesa N. O. Nelson Co.,
121 Ariz. 438, 443 (1979) (providing that we need not address issues raised
for the first time in a reply). Nevertheless, because it involves an issue of
statewide importance, we address it.
¶37 Substantial compliance applies to petitions that, despite
minor, technical errors, still “fulfill[] the purpose of the relevant statutory
or constitutional requirements.” Feldmeier v. Watson, 211 Ariz. 444, 447 ¶ 14
(2005). Thus, a petition will be deemed valid if it “compl[ies] substantially,
[but] not necessarily technically” with statutory and constitutional
requirements. State v. Osborn, 16 Ariz. 247, 250 (1914) (citation omitted). In
making this determination, we “consider several factors, including the
nature of the constitutional . . . requirements, the extent to which the
petitions differ from the requirements, and the purpose of the
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requirements.” Feldmeier, 211 Ariz. at 447 ¶ 14. See also id. at 449 ¶ 23
(finding substantial compliance where affidavit omitted the phrase “City of
Prescott”); Wilhelm v. Brewer, 219 Ariz. 45, 49 ¶¶ 17–18 (2008) (determining
substantial compliance despite capitalization errors); Kromko, 168 Ariz. at57–58 (determining substantial compliance where extraneous short title
was not required by the statute).
¶38 Petitioners’ claim fails. Section 1(9) provides a different
procedure for collecting signatures than E-Qual. Thus, E-Qual does not
comply, much less substantially comply with Section 1(9). 4
IV.
¶39 Petitioners concede that absent the current circumstances
involving COVID-19, Section 1(9) is a valid ballot restriction. As a result,
they do not claim that Section 1(9) is facially unconstitutional. See United
States v. Salerno, 481 U.S. 739, 745 (1987) (stating that a party claiming that a
law is facially unconstitutional must “establish that no set of circumstances
exists under which [the law] would be valid”). And Petitioners do not
argue that the Stay-at-Home Order, as applied to them, violates their
constitutional rights. Nor could they, because the Stay-at-Home Order
exempts constitutionally protected activities such as collecting initiative
signatures. Executive Order 2020-18 (Mar. 30, 2020).
¶40 Rather, Petitioners argue that Section 1(9)’s in-person
procedure, as applied to their efforts to collect initiative signatures during
COVID-19, violates their fundamental right to vote, as well as their rights
guaranteed by the First Amendment and the Equal Protection Clause of the
Fourteenth Amendment. See Wis. Right to Life, Inc. v. FEC, 546 U.S. 410, 411–
12 (2006) (explaining that an as-applied attack argues that a law’s
application to a particular person under particular circumstances deprived
that person of a constitutional right). Petitioners bear the burden of
establishing that Section 1(9) violates their constitutional rights. See Graham
v. Tamburri, 240 Ariz. 126, 130–31 ¶ 13 (2016); Ariz. Libertarian Party v.
Reagan, 798 F.3d 723, 730 (9th Cir. 2015).
4 Because E-Qual does not substantially comply with Section 1(9), we need
not address the constitutionality of A.R.S. § 19-102.01, which requires that
initiatives strictly comply with statutory and constitutional requirements.
See Petolicchio v. Santa Cruz Cty. Fair & Rodeo Ass’n, Inc., 177 Ariz. 256, 259
(1994) (explaining that we do not reach constitutionality of a statute if
“unnecessary in determining the merits of the action”).
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A. Framework
¶41 Ballot access restrictions implicate the right to vote and the
related right to associate with others to advance shared political beliefs. See
Moore v. Ogilvie, 394 U.S. 814, 818 (1969) (stating that restrictions on
candidate nominating petitions implicate the fundamental right to vote);
Williams v. Rhodes, 393 U.S. 23, 31 (1968) (same). However, the right to place
an initiative measure on the ballot is not absolute, see Burdick v. Takushi, 504
U.S. 428, 433 (1992), and “substantial regulation of elections” is necessary
“if they are to be fair and honest and if some sort of order, rather than chaos,
is to accompany the democratic processes.” Storer v. Brown, 415 U.S. 724,
730 (1974). Accordingly, states have “considerable leeway to protect the
integrity and reliability of the initiative process, as they have with respect
to election processes generally.” Buckley v. Am. Const. L. Found., Inc. (“ACLF
II”), 525 U.S. 182, 191 (1999).
¶42 The United States Supreme Court has provided one
framework for analyzing the constitutionality of all ballot access
restrictions. See Anderson v. Celebrezze, 460 U.S. 780, 789 (1983); Burdick, 504
U.S. at 434. Under this framework, courts weigh the severity of the burden
on a plaintiff’s First and Fourteenth Amendment rights to determine the
level of scrutiny to apply. Burdick, 504 U.S. at 434 (applying Anderson’s
“more flexible standard” but refining it and clarifying that courts must
weigh the constitutional burden before determining the level of scrutiny).
Restrictions imposing a “severe burden” are subject to strict scrutiny and
must be narrowly tailored to advance a compelling state interest. Id.;
Graham, 240 Ariz. at 130 ¶ 12, 131 ¶ 19 (setting forth same). However,
restrictions that “impose[] only ‘reasonable, nondiscriminatory
restrictions,’” trigger less exacting review. Burdick, 504 U.S. at 434 (quoting
Anderson, 460 U.S. at 788). Such laws need not be narrowly tailored and
may be justified by the state’s “important regulatory interests.” Id.;
Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997); Graham, 240
Ariz. at 130 ¶ 12; Dudum v. Arntz, 640 F.3d 1098, 1114 (9th Cir. 2011).
¶43 Petitioners claim, however, that instead of applying the
Anderson/Burdick framework, we should apply the test set forth in Turley v.
Bolin, 27 Ariz. App. 345, 348 (1976). We disagree. Turley applies to statutes
that “unreasonably hinder or restrict” the right to legislate by initiative. Id.
at 348. But here, Section 1(9) is a constitutional provision, not a statute, and
it was adopted by the framers alongside the right to legislate by initiative.
In short, Turley does not apply here.
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B. Burden
¶44 Although there is no “‘litmus-paper test’ that will separate
valid from invalid [ballot] restrictions,” Anderson, 460 U.S. at 789 (quoting
Storer, 415 U.S. at 730), there have emerged two general categories of ballot
access restrictions that impose severe burdens. A restriction may impose a
severe burden if it: (1) discriminates by “operat[ing] as a mechanism to
exclude certain classes” of “identifiable political group[s]” from the ballot,
see, e.g., Anderson, 460 U.S. at 793–94 (citation omitted); or (2) would prohibit
even a reasonably diligent candidate/proponent from earning a place on
the ballot. Storer, 415 U.S. at 742; see Libertarian Party of Wash. v. Munro, 31
F.3d 759, 762–63 (9th Cir. 1994) (finding no severe burden where a
reasonably diligent independent party could collect needed signatures
within a deadline), overruled on other grounds by Pub. Integrity Alliance, Inc.
v. City of Tucson, 836 F.3d 1019, 1025 (9th Cir. 2016); Stone v. Bd. of Election
Comm’rs, 750 F.3d 678, 682 (7th Cir. 2014) (describing the reasonable
diligence test as “[w]hat is ultimately important” to determine whether a
severe burden exists); Graham, 240 Ariz. at 130 ¶ 13, 131 ¶ 14 (to the same
effect).
1. Neutral and Non-Discriminatory
¶45 As an initial matter, Section 1(9) does not qualify as the first
type of severe restriction because it does not discriminate against political
groups. Rather, it is a neutral and non-discriminatory verification
procedure that applies to all initiatives. See Rubin v. City of Santa Monica,
308 F.3d 1008, 1015 (9th Cir. 2002) (holding that there was no severe burden
where a ballot restriction was applicable to all candidates); see also Anderson,
460 U.S. at 793 (explaining that it is “especially difficult for the [s]tate to
justify a restriction that limits political participation by an identifiable
political group whose members share a particular viewpoint, associational
preference, or economic status”). Indeed, signature verification provisions
such as Section 1(9) are generally considered to be neutral and
nondiscriminatory. Lemons v. Bradbury, 538 F.3d 1098, 1105 (9th Cir. 2008)
(stating that “[l]ike other evenhanded restrictions that protect the integrity
and reliability of the electoral process itself, the state’s signature verification
procedures must be upheld” (citations omitted) (internal quotation marks
omitted)); Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291, 297
(6th Cir. 1993) (holding that Michigan’s procedures for determining
whether initiative signatures are valid are “content-neutral,
nondiscriminatory regulations that are . . . reasonably related to the
purpose of administering an honest and fair initiative procedure”).
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2. Diligence
¶46 A proponent bears the burden of showing that he exercised
reasonable diligence in seeking ballot access. See Angle v. Miller, 673 F.3d
1122, 1133–34 (9th Cir. 2012); Citizens For Honest & Responsible Gov’t v. Sec’y
of State, 11 P.3d 121, 125–26 (Nev. 2000). In assessing an initiative
proponent’s diligence, we examine whether current or past proponents
subject to the same requirements have been able to secure a place on the
ballot. Storer, 415 U.S. at 742; Munro, 31 F.3d at 763. Additionally, we
examine a proponent’s diligence in the context of the state’s entire ballot
access scheme, see Williams, 393 U.S. at 34, analyzing the impact that other
laws, such as minimum signature requirements, limitations on the number
of available signers, and the length of time to collect signatures, may have
on a proponent’s ability to qualify for the ballot. See Mandel v. Bradley, 432
U.S. 173, 178 (1977) (examining a candidate’s diligence in the context of state
laws regarding the number of required signatures, limitations on the
available pool of signers, and the time period to obtain signatures);
Whittaker v. Mallott, 259 F. Supp. 3d 1024, 1034 (D. Alaska 2017) (same);
Green Party of Ga. v. Kemp, 106 F. Supp. 3d 1314, 1322–23 (N.D. Ga. 2015)
(same).
¶47 Arizona’s ballot access scheme does not prevent a reasonably
diligent initiative proponent from gaining access to the ballot. As an initial
matter, proponents have approximately twenty months to collect
signatures. Courts generally have not found a severe burden when a
proponent has such an extended period of time to collect signatures. See
Libertarian Party of Fla. v. Florida, 710 F.2d 790, 794 (11th Cir. 1983) (finding
no severe burden based, in part, on the fact that the candidate was afforded
188 days to collect signatures); Kemp, 106 F. Supp. 3d at 1322–23 (finding no
severe burden where candidate had 180 days to collect signatures);
Libertarian Pol. Org. of Okla. v. Clingman, 162 P.3d 948, 955 ¶ 21 (Okla. 2007)
(finding no severe burden where minority political parties had one year to
collect signatures).
¶48 Arizona also allows all eligible voters to sign initiative
petitions, thereby creating a large pool of available voters to sign a
proponent’s petitions. See, e.g., Swanson v. Worley, 490 F.3d 894, 904 (11th
Cir. 2007) (holding that lack of restrictions on the available pool of potential
signers, which encompassed all eligible voters, was a factor that
“alleviat[ed]” a candidate’s burden in gathering signatures). Additionally,
Arizona’s July 2 petition filing deadline is not unreasonably early.
Anderson, 460 U.S. at 782, 792 (striking down a statutory filing deadline
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Opinion of the Court
requiring independent candidates to submit all signatures by March 20);
Whittaker, 259 F. Supp. 3d at 1036 (providing that a mid-August deadline
was not overly burdensome); Campbell v. Hull, 73 F. Supp. 2d 1081, 1087 (D.
Ariz. 1999) (providing that a June 27 filing deadline was not overly
burdensome); Browne, 202 Ariz. at 407 ¶ 5, 409 ¶ 13 (providing that a
mid-June deadline was not unreasonably early).
¶49 Here, in the context of Arizona’s laws, the record shows that
Petitioners did not exercise reasonable diligence. Apart from Smart and
Safe Arizona, Petitioners made no effort to collect signatures for sixteen
months (November 2019 to February 2020). See Dobson v. Dunlap, 576 F.
Supp. 2d 181, 191 (D. Me. 2008) (stating that “[t]he constitutional standard
contemplates a reasonably diligent [initiative proponent] not a last-minute
procrastinator”); Clingman, 162 P.3d at 950 ¶ 2, 954–55 ¶¶ 20–21 (finding no
severe burden where minority political parties, despite the fact that they
had one year to collect signatures, only collected half the necessary
signatures, and made “little effort” to collect signatures until two months
before the deadline); cf. Burdick, 504 U.S. at 436–37 (giving “little weight” to
independent candidates’ late decision to seek ballot access and noting that
a burden on “‘instantaneous access to the ballot’” was a “very limited one”
(quoting Storer, 415 U.S. at 736)).
¶50 Perhaps more importantly, Smart and Safe Arizona, which
began collecting signatures in September 2019, was able, by April 1, to
collect the required signatures to qualify for the November 2020 ballot. See
Am. Party of Tex. v. White, 415 U.S. 767, 787 (1974) (stating that “we are thus
unimpressed with arguments that [ballot access] burdens . . . are too
onerous . . . where two of the original party plaintiffs themselves satisfied
these requirements”); Prete v. Bradbury, 438 F.3d 949, 967 (9th Cir. 2006)
(finding no severe burden in part because another petition sponsor
managed to comply with the subject regulation and obtain a place on the
ballot); Stone, 750 F.3d at 682–83 (to the same effect).
¶51 Petitioners’ only excuse for failing to collect signatures during
this sixteen-month period is that it is “common practice” for initiative
proponents to begin gathering signatures in the “spring” of an election
year. In support of this purported justification, Petitioners cite three
previous initiatives that qualified for the ballot after proponents began their
collection efforts in the spring of the election year.
¶52 We are unpersuaded. From 2010–2018, 106 PACs filed
applications to begin collecting initiative signatures. However, only sixteen
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PACs filed their applications after March 1 of the election year. See Voter
Registration & Historical Election Data, Ariz. Sec’y of State,
https://azsos.gov/elections/voter-registration-historical-election-data
(last visited Aug. 12, 2020). In short, waiting to gather signatures until the
spring of an election year is not a common practice. Rather, Petitioners’
delayed start is simply their preferred strategy to gain ballot access.
However, “the Constitution does not require that [the state] compromise
the policy choices embodied in its ballot-access requirements to
accommodate [an initiative proponent’s] strategy.” Timmons, 520 U.S. at
365.
¶53 Petitioners argue, however, that their failure to collect
signatures before the onset of COVID-19 is irrelevant. Rather, they claim
that we must only examine their ability to collect signatures after the onset
of COVID-19, e.g., from early March until July 2.
¶54 We reject Petitioners’ argument. This Court must examine
Petitioners’ diligence throughout the full window of time available to them
to gather signatures. Supra ¶¶ 46–47. This does not mean that Petitioners
may only show their diligence through an early start date. However, it is
also true that we are not required to ignore their failure to collect a single
signature for almost sixteen months.
¶55 Petitioners have not shown they exercised reasonable
diligence after the onset of COVID-19. See infra ¶¶ 60–61 (discussing cases
where courts have considered the diligence of candidates and initiative
proponents in attempting to gather signatures during COVID-19).
Throughout this case, in response to their opponents’ argument that
collecting signatures during the pandemic was still feasible, Petitioners
have taken the position that COVID-19 has “rendered signature gathering
a practical impossibility.” In short, rather than presenting evidence
regarding their plans and efforts to gather signatures during the pandemic,
they simply advised us that without access to E-Qual, their petition efforts
were “near-impossible,” and “signature gathering will halt.”
¶56 We note that subsequent events have proved this claim to be
untrue. Even without access to E-Qual, neither the Governor’s orders nor
COVID-19 prevented three of the four Petitioners from collecting the
required number of signatures (237,645) by the July 2 deadline. Specifically,
Second Chances filed petitions containing 338,202 signatures; Invest in
Education filed 377,456 signatures; and Smart and Safe Arizona filed
415,587 signatures. Indeed, another initiative committee, “Stop Surprise
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Billing and Protect Patients Act,” was able to collect 385,771 signatures.5
Only SOSAZ failed to file the minimum required signatures.
¶57 Finally, we note that, according to the dissent, our analysis
focuses only on Petitioners’ rights and fails to consider the “electorate’s
rights.” Our colleague is mistaken. Given the close correlation between the
rights of initiative proponents and the electorate, the Anderson/Burdick
framework necessarily considers the burdens placed on both of them. See
Bullock v. Carter, 405 U.S. 134, 143 (1972) (stating that the rights of candidates
and voters do not easily lend themselves to “neat separation” because there
is a correlative effect between them). Indeed, the petitioner in Burdick was
a voter. 504 U.S. at 438.
¶58 Accordingly, because Petitioners have failed to show that
Section 1(9) prevented them from obtaining a place on the ballot under the
reasonable diligence standard, we find that the circumstances created by
COVID-19 did not severely burden their constitutional rights. As a result,
Section 1(9) is not subject to strict scrutiny.
C. Important Regulatory Interest
¶59 It is undisputed that Section 1(9) advances the state’s
“important regulatory interest” of protecting the integrity of the initiative
process. See Stanwitz v. Reagan, 245 Ariz. 344, 349 ¶ 18, 350 ¶ 21 (2018)
(explaining that the “integrity of signature gathering” is protected through
petition circulators who “reduce the number of erroneous signatures, guard
against misrepresentations, and confirm that signatures were obtained
according to law” (citations omitted)); W. Devcor, Inc., 168 Ariz. at 431–32
(explaining that circulator’s verification of signatures through an affidavit
under Section 1(9) serves as an “important check” that signatures collected
are valid); Direct Sellers Ass’n v. McBrayer, 109 Ariz. 3, 6 (1972) (explaining
that a circulator’s affidavit protects against fraud and corruption in the
circulation of initiative petitions (citing Ch. 82, Ariz. Sess. Laws, (House Bill
167) (1953))); see also Ariz. Const. art. 7, § 12 (“There shall be enacted
registration and other laws to secure the purity of elections and guard
against abuses of the elective franchise.”); Burdick, 504 U.S. at 441 (stating
that “the right to vote is the right to participate in an electoral process that
5 The Secretary’s website provides the PAC’s number of valid signatures
prior to the verification process. Initative, Referendum and Recall, Ariz. Sec’y
of State, https://azsos.gov/elections/initiative-referendum-and-recall
(last visited Sept. 2, 2020).
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is necessarily structured to maintain the integrity of the democratic
system”).
D. COVID-19 Cases
¶60 Courts are split on whether ballot access restrictions during
COVID-19 impose a severe burden on initiative proponents and
prospective candidates. For example, in Arizonans for Fair Elections v. Hobbs,
No. CV-20-00658-PHX-DWL, 2020 WL 1905747 (D. Ariz. Apr. 17, 2020),
Petitioners alleged essentially the same claims as they allege here. 6 There,
the federal district court found no severe burden, considering in detail the
date the plaintiffs began collecting signatures, overall window of time, and
the success of similarly situated individuals. Id. at *10–11 (citing Angle, 673
F.3d at 1133–34; Prete, 438 F.3d at 964, 967). Hobbs also stated that to justify
the enormity of the relief requested—“displacement of a bedrock
component of Arizona law”—Petitioners were required to show “not only
that they have been thwarted by the law, but that a reasonably diligent party
would have been thwarted, too.” Id. at *11. Like Hobbs, most courts have
found no severe burden where parties failed to exercise reasonable
diligence in seeking ballot access. See, e.g., Thompson v. Dewine, 959 F.3d
804, 810 (6th Cir. 2020) (finding no severe burden, in part because initiative
proponents failed to make reasonable efforts to collect signatures).
¶61 Courts finding severe burdens due to COVID-19 are
distinguishable from this case because: (1) the parties showed that they
exercised reasonable diligence; or (2) the state-imposed safety restrictions
related to COVID-19 (e.g., stay-at-home orders) limited the parties’ ability
to collect signatures throughout most of the allotted statutory time period.
See Esshaki v. Whitmer, No. 2:20-CV-10831-TGB, 2020 WL 1910154, at *1, *2,
*4 (E.D. Mich. Apr. 20, 2020) (“Esshaki I”) (determining that a candidate was
diligent when he began collecting signatures six months prior to the
deadline, lacked only 30% of his signatures when the stay-at-home orders
went into effect, organized and canceled multiple campaign events, and
continued to collect signatures after the onset of COVID-19); Esshaki v.
Whitmer, No. 20-1336, 2020 WL 2185553, at *1 (6th Cir. May 5, 2020)
(affirming the district court in Esshaki I); Garbett v. Herbert, No. 2:20-CV-245-
RJS, 2020 WL 2064101, at *1–4 (D. Utah Apr. 29, 2020) (reducing the
statutory minimum signature requirement by approximately one-third
where the record contained evidence of the candidate’s efforts throughout
the time affected by COVID-19; candidate put forth evidence of a 50%
6We cite to unpublished district court orders as persuasive authority. Ariz.
R. Sup. Ct. 111(d).
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signature-rejection rate during the stay-at-home restrictions, candidate
contracted with companies to obtain 50,000 signatures—almost twice the
required amount—one week prior to her deadline, hired nearly 200
employees for her campaign, attempted remote signature gathering, and
collected almost 75% of the required signatures almost exclusively during
COVID-19); Libertarian Party of Ill. v. Pritzker, No. 20-CV-2112, 2020 WL
1951687, at *4 (N.D. Ill. Apr. 23, 2020) (determining there was a severe
burden, in part because “the window for collecting signatures” opened at
nearly the same time as the onset of COVID-19); Fair Maps Nev. v. Cegavske,
No. 3:20-cv-00271-MMD-WGC, 2020 WL 2798018, at *12–13 (D. Nev. May
29, 2020) (denying plaintiffs’ request to waive in-person requirement but
granting request to extend filing deadline because plaintiffs demonstrated
reasonable diligence in collecting signatures as soon as practical and
continued their efforts to collect signatures during COVID-19). Here, by
contrast, Petitioners have not exercised reasonable diligence, and
COVID-19 impacted only a small portion of their twenty-month window to
collect signatures.
¶62 Petitioners’ reliance on Goldstein v. Secretary of Commonwealth,
142 N.E.3d 560 (Mass. 2020) is misplaced. There, prospective candidates for
elected office requested the court eliminate Massachusetts’s statutory
minimum signature requirement due to COVID-19 or alternatively,
provide equitable relief by modifying state ballot access laws. Id. at 563–64.
Rather than eliminating the signature requirement, Goldstein reduced it,
extended the deadline, and allowed candidates to collect electronic
signatures. Id. at 564.
¶63 Goldstein is distinguishable. First, in Goldstein the Secretary
conceded that the minimum signature requirement, as applied during
COVID-19, was subject to, and did not satisfy, strict scrutiny. Id. at 569, 571.
Thus, the critical issue here—whether the extent of the burden imposed on
Petitioners’ constitutional rights warrants strict scrutiny—was never
addressed by the court. Goldstein, therefore, did not conduct a reasonable
diligence analysis. See also Pritzker, 2020 WL 1951687, at *4 (similarly stating
that the “court need not devote significant additional attention to the
constitutional questions presented because . . . the parties have proposed
an order that grants appropriate relief,” and that “[n]otably, from the outset
of these proceedings, even Defendants have acknowledged that the ballot
access restrictions must be relaxed, in some shape or form, to account” for
COVID-19). Second, in Goldstein, the plaintiffs’ short, three-month window
to collect signatures began one month before the onset of COVID-19, and
the Governor’s stay-at-home order remained in effect until the filing
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deadline had passed. 142 N.E.3d at 566–68; see also Sec’y of the
Commonwealth, A Candidates Guide to the 2020 State Election 6 (Feb.
2020) (allowing circulation of petitions on February 11, 2020). In contrast,
here, Petitioners had twenty months to collect signatures, and only three of
those months were impacted by COVID-19.
E. Voting Rights Cases
¶64 Petitioners also cite several voting cases that are
distinguishable because they address statutes that either disenfranchise a
group of voters or violate the principle of one person, one vote. See Idaho
Coal. United for Bears v. Cenarrusa, 342 F.3d 1073, 1076–78 (9th Cir. 2003)
(determining that strict scrutiny applied to a regulation that violated the
Equal Protection guarantee of “one person, one vote” by effectively giving
more weight to some petition signatures in rural areas); Fla. Democratic
Party, 215 F. Supp. 3d at 1254, 1257 (extending a statutory voter registration
deadline five days for individuals who failed to register before a hurricane
because imposing the deadline would “completely disenfranchise[]
thousands of voters” and “foreclose[] the right to vote” to everyone who
had not registered before the hurricane); Democratic Nat’l Comm. v.
Bostelmann, No. 20-cv-249-wmc, 2020 WL 1320819, at *5–6 (W.D. Wis. Mar.
20, 2020) (extending a statutory voter registration deadline twelve days
because of COVID-19 and reasoning that it would afford voters greater
“opportunity to exercise their franchise”); Ga. Coal. for the Peoples’ Agenda,
Inc. v. Deal, 214 F. Supp. 3d 1344, 1345–46 (S.D. Ga. 2016) (permitting a
seven-day extension of a statutory voter registration deadline due to
mandatory evacuations caused by a hurricane); In re Holmes, 788 A.2d 291,
294–95 (N.J. Super. Ct. App. Div. 2002) (permitting counting of absentee
ballots received after statutory deadline where ballots were trapped in a
postal facility subject to closure and quarantine due to an anthrax attack
where failure to count the votes would “deprive absentee voters of their
franchise” to vote).
¶65 Although restrictions that disenfranchise voters or violate the
one-person, one-vote principle are generally subject to strict scrutiny, none
of those cases are relevant here. Section 1(9) provides a signature
verification requirement; it neither disenfranchises voters nor unequally
weighs signatures. See Lemons, 538 F. 3d at 1104 (stating that, “[t]o date, the
Supreme Court has subjected only two types of voting regulations to strict
scrutiny”: those that “unreasonably deprive” some persons of the right to
vote, and those that “contravene the principle of one person, one vote”
(citation omitted) (internal quotation marks omitted)).
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¶66 However, attempting to blur the distinction between the right
to vote in an election and the right to sign an initiative petition, Petitioners
and the dissent claim that our decision disenfranchises Arizonans from
voting in initiative elections. We do no such thing. Neither the Federal nor
Arizona Constitution guarantees the electorate an unlimited right to vote
on every initiative, valid and invalid alike, regardless of whether the
proponents have made reasonably diligent efforts to comply with ballot
access restrictions. See Ill. State Bd. of Elections v. Socialist Workers Party, 440
U.S. 173, 184–85 (1979) (explaining that properly drawn ballot access
restrictions may be valid despite their impact on the rights of voters). Thus,
upholding Section 1(9) as a valid requirement for signing petitions does not
deprive Arizonans of the right to vote on valid initiatives. See Angle, 673 F.
3d at 1130 (stating that although “[v]otes and petition signatures are similar
in some respects,” they “serve different purposes,” and while “ballot access
requirement[s] determine[] whether there is a minimum level of grassroots
support for an initiative to warrant its inclusion on the ballot,” votes in an
election measure “the collective, aggregate will of the electorate”); see
Austin, 994 F.2d at 296 (also noting the distinction from signing a petition
and voting).
V.
¶67 Next, Petitioners argue that Section 1(9), as applied here,
violates their right to free speech guaranteed by the First Amendment.
Petitioners claim that prohibiting them from “circulating” E-Qual petitions
during COVID-19 prevents them from engaging in “core political speech”
with potential signers. Additionally, they claim that Section 1(9) is an
unconstitutional content-based restriction because candidates are
permitted to “speak” by collecting signatures through E-Qual, while
initiative proponents are not.
A. Core Political Speech
¶68 In Meyer v. Grant, the Supreme Court addressed the guarantee
of free speech in the context of circulating initiative petitions, stating:
The circulation of an initiative petition of necessity involves
both the expression of a desire for political change and a
discussion of the merits of the proposed change. Although a
petition circulator may not have to persuade potential
signatories that a particular proposal should prevail to
capture their signatures, he or she will at least have to
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Opinion of the Court
persuade them that the matter is one deserving of the public
scrutiny and debate that would attend its consideration by the
whole electorate. This will in almost every case involve an
explanation of the nature of the proposal and why its
advocates support it. Thus, the circulation of a petition
involves the type of interactive communication concerning
political change that is appropriately described as “core
political speech.”
486 U.S. 414, 421–22 (1988).
¶69 The Supreme Court stated that such “direct one-on-one
communication” is “the most effective, fundamental, and perhaps
economical avenue of political discourse.” Id. at 424; see ACLF II, 525 U.S.
at 215 (O’Connor, J., concurring in part and dissenting in part) (stating that
“[i]t was the imposition of a direct and substantial burden on th[e] one-
on-one communication” occurring “[w]hen an initiative petition circulator
approaches a person and asks that person to sign the petition” “that
concerned us in Meyer”).
¶70 A few years later, in ACLF II, the Court explained that Meyer
applied to restrictions that “significantly inhibit communication with
voters.” 525 U.S. at 192 & n.12; see Prete, 438 F.3d at 962–63 (stating that
ACLF II “refined” Meyer’s analysis regarding what constitutes a “severe
burden” by qualifying it as those that “significantly inhibit” core political
speech) (emphasis omitted); see also Angle, 673 F.3d at 1132–33 (stating that
restrictions making it “less likely” for an initiative to qualify for the ballot
may impinge upon core political speech if they “significantly inhibit” a
reasonably diligent proponent from gaining access to the ballot). The Court
observed that, while “[c]irculating a petition is akin to distributing a
handbill” because both “involve a one-on-one communication,” circulating
a petition involves more core political speech because unlike circulating
political pamphlets,“[p]etition circulation is [a] less fleeting encounter” and
requires “the circulator [to] endeavor to persuade electors to sign the
petition.” ACLF II, 525 U.S. at 199 (citation omitted).
¶71 Both Meyer and ACLF II held that laws limiting the available
pool of initiative circulators are subject to strict scrutiny because such laws
“limit[] the number of voices who will convey [the proponent’s] message
and the hours they can speak,” thereby limiting “the size of the audience
they can reach.” Meyer, 486 U.S. at 418 & n.3, 422–23; see ACLF II, 525 U.S.
at 192–93 (holding that restrictions that “drastically reduce[] the number of
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Opinion of the Court
persons . . . available to circulate petitions” place an “undue hindrance[] to
political conversations and the exchange of ideas”); Nader v. Brewer, 531
F.3d 1028, 1036 (9th Cir. 2008) (holding that a law limiting the available pool
of circulators by requiring they be in-state residents unconstitutionally
impinged on the free speech rights of a candidate and his
out-of-state-supporters).
¶72 We conclude that Section 1(9) does not violate Petitioners’
right to free speech. Section 1(9) is a reasonable, nondiscriminatory ballot
access law that does not limit Petitioners’ available pool of circulators. See
Pest Comm. v. Miller, 626 F.3d 1097, 1099, 1107–08 (9th Cir. 2010) (declining
to apply Meyer to single-subject and description-of-effect laws because such
laws “d[id] not directly affect or even involve one-on-one
communication”); Dobrovolny v. Moore, 126 F.3d 1111, 1112–13 (8th Cir.
1997) (declining to apply Meyer to a statutory minimum signature
requirement that did not allow proponents to know the exact number of
signatures required until they submitted their petitions); Am. Ass’n of People
With Disabilities v. Herrera, 580 F. Supp. 2d 1195, 1227 (D. N.M. 2008)
(declining to apply Meyer to a requirement that third party voting registrars
undergo training); see also Protect Marriage Ill. v. Orr, 458 F. Supp. 2d 562,
570–71 (N.D. Ill. 2006), aff’d sub nom. Protect Marriage Ill. v. Orr, 463 F.3d 604(7th Cir. 2006) (distinguishing between restrictions that inhibit a circulator’s
communication with signers under Meyer and those that simply make it
more difficult to collect signatures).
¶73 Additionally, signature verification laws such as Section 1(9)
do “not restrict the means that the [proponents] can use to advocate their
proposal.” Austin, 994 F.2d at 297; see Meyer, 486 U.S. at 417, 427–28 (noting
that, in contrast to a law prohibiting paying circulators, which impinged
upon core political speech, a law requiring circulators to verify signatures
was “adequate to the task of minimizing the risk of improper conduct in
the circulation of a petition,” and, by implication not violative of core
political speech).
¶74 Thus, for example, in Am. Const. Law Found., Inc. v. Meyer
(“ACLF I”), the Tenth Circuit determined that in-person verification
requirements do not burden core political speech. 120 F.3d 1092, 1099 (10th
Cir. 1997), aff’d sub nom. ACLF II, 525 U.S. 182 (1999). In ACLF I, the Tenth
Circuit addressed several initiative petition circulator statutes, including
one requiring a circulator to avow that each signature was collected in his
or her presence. Id. ACLF I upheld this requirement, stating that it did not
“significantly burden[]” core political speech by “decreasing the pool of
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Opinion of the Court
available circulators.” Id.; see Campbell v. Buckley, 203 F.3d 738, 744 (10th Cir.
2000) (noting that ACLF I held that a signature verification law did not
impinge on core political speech). Then, in ACLF II, the Supreme Court,
noting that the Tenth Circuit upheld the verification requirement,
approvingly referred to that requirement as a measure by which the state
met its “substantial interest[] in regulating the ballot-initiative process”
through “less problematic measures.” See ACLF II, 525 U.S. at 204–05; see
id. at 215 (O’Connor, J., concurring in part and dissenting in part)
(distinguishing between regulations that “directly burden[] . . . one-on-one
communication” under Meyer and those that “direct[] the manner in which
an initiative proposal qualifies for placement on the ballot”).
¶75 Simply put, here, COVID-19, not Section 1(9), restricts the
ability of circulators to communicate with potential signers. See Thompson,
959 F.3d at 810 (stating that “First Amendment violations require state
action,” and “we cannot hold private citizens’ decisions to stay home for
their own safety against the [s]tate”); Morgan v. White, No. 20 C 2189, 2020
WL 2526484, at *6 (N.D. Ill. May 18, 2020) (stating that although “petition
circulators will understandably be unwilling to seek out signatures, and
potential supporters will be unwilling to venture out to sign them” during
the COVID-19 pandemic, “First Amendment harms” require “state
action”); see also U.S. Const. amend. I (“Congress shall make no law . . . ”)
(emphasis added); Manhattan Cmty. Access Corp. v. Halleck, __ U.S. __, 139 S.
Ct. 1921, 1928 (2019) (stating that “[t]he text and original meaning of [the
First Amendment], as well as this Court’s longstanding precedents,
establish that the Free Speech Clause prohibits
only governmental abridgment of speech. The Free Speech Clause does not
prohibit private abridgment of speech”).
¶76 Petitioners also fail to explain how supplanting Section 1(9)’s
procedure with E-Qual protects core political speech. Under E-Qual,
individuals sign petitions online by clicking a weblink. When this occurs,
there is no circulator present to discuss the initiative with the signer; indeed,
as a practical matter, E-Qual’s online procedure does not require any
communication between a circulator and a signer. In contrast, by requiring
in-person signatures, Section 1(9) increases in-person communication. See
Hobbs, 2020 WL 1905747 at *8 (stating that “[t]he in-person signature
requirements of Title 19 affirmatively promote speech”); Morgan, 2020 WL
2526484 at *6 (stating that as a general matter, in-person signature
requirements “may in fact increase the amount of one-on-one
communication between petition circulators and voters”); see also Angle, 673
F.3d at 1132–33 (stating that Nevada’s law “requiring initiative proponents
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Opinion of the Court
to carry their messages to voters in different parts of the state” “likely
increase[d] the total quantum of speech on public issues” (citation omitted)).
B. Content-Based Restriction
¶77 Citing Reed v. Town of Gilbert as authority, Petitioners argue
that Section 1(9) is a content-based regulation because it denies initiative
proponents’ access to E-Qual, placing a greater restriction on the political
speech of initiative proponents than candidates, who have access to E-Qual.
576 U.S. 155, 164 (2015).
¶78 “[L]aws that by their terms distinguish favored speech from
disfavored speech on the basis of the ideas or views expressed are content
based.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 643 (1994); see also Reed,
576 U.S. at 164. Additionally, laws that are facially neutral “will be
considered content-based” if they “cannot be justified without reference to
the content of the regulated speech, or [] were adopted by the government
because of disagreement with the message [the speech] conveys.” Reed, 576
U.S. at 164 (internal citation omitted) (internal quotation marks omitted).
Content-based laws must satisfy strict scrutiny. Id.
¶79 Petitioners’ reliance on Reed is misplaced. There, the Supreme
Court determined that a town’s sign code was content based because it gave
less favorable treatment to political signs and signs “directing the public to
church.” Id. at 164. Here, all initiative proponents must comply with
Section 1(9), regardless of the initiative’s message. See Prete, 438 F.3d at 968
n.24 (stating that a law restricting payment method for initiative circulators,
but not candidate nomination circulators, was not content based because it
did not “regulate what c[ould] be said . . . [] nor d[id] it adopt or reject any
particular subject that can be raised in a petition”); see also Semple v.
Griswold, 934 F.3d 1134, 1142 (10th Cir. 2019) (determining that a law
making it more difficult and expensive to enact legislation through
initiative measures was not content based).
VI.
¶80 We further note that even if Section 1(9) triggers strict
scrutiny, it is constitutional because it is the least restrictive means
practically available to promote the state’s compelling interest.
¶81 Section 1(9)’s purpose—to protect the integrity of initiative
elections—is a compelling one. See supra ¶ 59; Purcell v. Gonzalez, 549 U.S.
28Arizonans For Second Chances, et al. v. Hobbs
Opinion of the Court
1, 4 (2006) (“Confidence in the integrity of our electoral processes is
essential to the functioning of our participatory democracy. Voter fraud
drives honest citizens out of the democratic process and breeds distrust of
our government.”); Thompson, 959 F.3d at 811 (stating that in-person
verification laws that “help prevent fraud by ensuring that the signatures
are authentic” is a “compelling” state interest). Thus, the only issue is
whether Section 1(9) is narrowly tailored to advance that interest.
¶82 A law is narrowly drawn if it advances a compelling state
interest by using the “least restrictive means practically available.” Bernal
v. Fainter, 467 U.S. 216, 227 (1984); see Kenyon v. Hammer, 142 Ariz. 69, 87–88
(1984) (same). Thus, strict scrutiny requires the “least restrictive means
among available, effective alternatives.” Ashcroft v. Am. C.L. Union, 542 U.S.
656, 666 (2004); see State v. Hardesty, 222 Ariz. 363, 368 ¶ 21 (2009) (stating
that the least restrictive means test requires that the state “show that
proposed alternatives for achieving the State’s compelling interest are
ineffective or impractical” but does not require the state to show “that no
less restrictive way to regulate is conceivable, only that none has been
proposed”).
¶83 Here, E-Qual does not provide a viable alternative to Section
1(9)’s in-person verification procedure because: (1) E-Qual has no existing
statutory or regulatory scheme to replace Section 1(9)’s signature
verification procedure; and (2) Petitioners have failed to show that the
Secretary can expand E-Qual in the truncated timeframe necessary to
provide Petitioners relief.
A. Procedure for Verifying Signatures
¶84 Petitioners claim that the statutory provisions governing
E-Qual can, with “minor adjustments,” be extended to initiative petitions.
We disagree.
¶85 Section 1(9), and its related Title 19 scheme, provide a detailed
procedure for verifying and validating initiative petition signatures.
Initially, an affiant/circulator witnesses and verifies initiative signatures.
See § 19-112. Next, Title 19 requires the Secretary to independently verify
and validate initiative petition signatures. See A.R.S. § 19-121.01(A)(1)(a)–
(h), (2)(a)–(c), (3)(a)–(f). Then, the Secretary must randomly select five
percent of the remaining signatures and send them to the county recorders
for verification. Id. at (B)–(D), -121.02(A)(1)–(11). After the recorders finish
their verification process, the Secretary then determines whether the total
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remaining number of valid signatures satisfies the constitutional minimum
requirements. § 19-121.04(B).
¶86 However, the Title 16 scheme governing E-Qual signatures is
different than Title 19’s scheme. Under Title 16, petition signatures are
presumed valid, and unless challenged by a party, neither the Secretary nor
the county recorders verify them. See A.R.S. § 16-351(E) (explaining that
county recorders verify candidate nominating petition signatures only after
a challenge is filed); Jenkins v. Hale, 218 Ariz. 561, 562–63 ¶ 8 (2008) (stating
that candidate nominating petitions are generally presumed valid).
¶87 It is unclear how the Title 19 scheme regulating initiative
petition circulators would apply to signatures obtained through E-Qual.
For example, Title 19 requires that each petition specify whether the
signatures were obtained by a volunteer or paid circulator. A.R.S.
§§ 19-101(C), -102(C). Presumably, individuals compensated for sharing
E-Qual weblinks with potential signers would qualify as initiative
circulators. See A.R.S. § 19-118(I)(1) (stating that a “paid circulator” is a
“person who receives monetary or other compensation for obtaining
signatures” (emphasis added)). However, apart from the general “circulator
statement” filed by a candidate, see supra ¶ 32, the record contains no
evidence that E-Qual has the capability to identify individual petitions
according to the specific “circulator” who shared the petition’s weblink.
¶88 And of course, like the verification process, Title 19 and Title
16 have very different requirements for circulators. For example, under
Title 19, an initiative petition circulator must register with the Secretary if
he or she is a nonresident or receives payment for circulating a petition.
§ 19-118(A). A candidate petition circulator, by contrast, must register with
the Secretary only if he or she is a nonresident. A.R.S. §§ 16-315(D), -341(G).
Initiative circulators must be assigned a “registration number,” whereas
candidate petition circulators are not. § 19-118(C); see § 16-315. Finally,
under § 19-112(C)–(D), initiative petitions must contain a notarized
affidavit, attesting that the circulator witnessed the signature in person. No
such affidavit or notarization is required for candidate petitions. A.R.S.
§ 16-321(D).
¶89 Compounding this problem is the fact that it is unclear which,
if any, of Title 16’s signature verification procedures apply to E-Qual.
Specifically, the legislature has delegated broad authority to the Secretary
to use “an appropriate method” to verify E-Qual signatures. See
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Opinion of the Court
§§ 16-315(E), -341(M). But neither Petitioners nor the Secretary identify a
standard or procedure prescribing this “appropriate method.”
¶90 Indeed, to date, the Secretary has not published any standards
for verifying E-Qual signatures, nor are we able to discern that she has
adopted such standards. The Secretary’s Elections Procedures Manual
simply states that prospective candidates may use E-Qual. Ariz. Sec’y of
State, 2019 Elections Procedures Manual 108, 111 (2019). It sets forth no
procedure for using E-Qual. And although the Arizona Department of
Administration (“ADOA”) published a five-page policy for the state’s use
of electronic signatures, that policy provides little guidance here.
Specifically, ADOA’s policy simply requires that electronic signatures be:
(1) unique to each signer; (2) capable of verification; (3) invalidated if
altered within the system; and (4) electronically copied and archived with
the Arizona State Library. See Ariz. Dep’t of Admin., P4070 Electronic and
Digital Signature Policy 3 (2017); see also A.R.S. § 18-106(C) (to same effect).
¶91 Arizona Administrative Code R2-12-501(L) and R2-12-503
provide that the Secretary will adopt guidelines under the “Certification
Authority Rating and Trust” (“CARAT”) model for certifying new
technologies. But the record does not establish whether the Secretary has
applied CARAT guidelines to E-Qual. And even if she has, those guidelines
do not provide a procedure for validating and verifying signatures. See
Nat’l Automated Clearing House Ass’n, CARAT Guidelines Version 1
Draft (1998) (providing general advice for certifying and implementing new
technologies from an engineering, business, and policy perspective).
¶92 Finally, according to the Secretary’s website, the Secretary is
required to maintain an “Approved List of Certified Authorities”
authorized to issue certificates for electronically signed communications
with public entities in Arizona. See Arizona Administrative Code, Ariz. Sec’y
of State, https://azsos.gov/rules/arizona-administrative-code (last visited
Aug. 7, 2020) (posting regulations requiring same); see also Ariz. Admin.
Code R2-12-501(B), -504 (requiring the Secretary to audit and maintain an
“Approved List of Certified Authorities” for “electronically signed
transactions involving public entities”). But E-Qual is not a properly
“certified authority” on that list. Indeed, the “Approved List of Certified
Authorities” does not exist. Although the state has an exempted
rule-making form from 1999 on file, see Notice of Exempt Rulemaking, 1–2
(1999), it is unclear who is now responsible for certifying E-Qual, how long
the Secretary is exempt, and whether the Arizona Administrative Code will
be updated to reflect the correct agency. As a result, based on this record,
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Opinion of the Court
we are unable to conclude who is responsible for certifying E-Qual and
whether E-Qual is properly authorized to accept any electronic signatures,
much less initiative signatures.
B. Expansion of E-Qual
¶93 The Secretary provides conflicting statements about her
ability to expand E-Qual before the July 2 deadline. Although she claims
that she “stands ready” to expand E-Qual with her existing staff and
without additional funding, she candidly admits that expanding E-Qual to
process initiative petitions, for even a few initiative measures, could
“dwarf” the number of “candidate petitions historically handled by the
system.” This is undoubtedly true. In the recent 2020 candidate filing
period, the Secretary states she processed approximately 58,000 E-Qual
signatures. In contrast, a single initiative measure requires 237,645
signatures, and at the time of Petitioners’ special action, twenty-four
statutory initiatives had already been filed. Initiative, Referendum and Recall
Applications, Ariz. Sec’y of State,
https://apps.arizona.vote/info/IRR/2020-general-election/18/0 (last
visited Aug. 14, 2020). Indeed, we now know that three of the Petitioners,
as well as another initiative proponent, have in fact filed just over one
million signatures, or approximately twenty times the number of signatures
processed in the last candidate nomination period.
¶94 Although the Secretary claims that expanding E-Qual to
process this large number of initiative petitions is “feasible,” she also
concedes that maintaining and supporting such a large number of
individual E-Qual petitions for statewide ballot initiatives will result in an
“increased workload” and additional “infrastructure demands,” requiring
additional webservers and technical support. And because each initiative
proponent must be given credentials and trained to manage E-Qual
petitions, she notes that this will “require staff time to on-board [each] new
initiative committee and provide troubleshooting and support as issues
arise with specific petitions.”
¶95 The Secretary has had difficulty expanding E-Qual for
candidate petitions in the past, raising serious questions about her
capability to do so here. In 2016, the legislature tasked the Secretary with
expanding E-Qual to make it available for candidates in local elections.
H.B. 2049 52nd 2nd Reg. Sess. (2016); § 16-317. It took the Secretary four
years, or until May 4, 2020, to finish the expansion. See Press Release, Ariz.
Sec’y of State, Secretary of State’s Office Successfully Completes Transition
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Opinion of the Court
to Arizona Voter Information Database, https://azsos.gov/about-
office/media-center/press-releases/1064 (last visited Aug. 14, 2020).
Nevertheless, she claims that she can expand E-Qual to cover statewide
initiatives within four weeks. She attempts to distinguish the expansion for
local candidates based on the “logistical complexities” of accommodating
multiple “election systems” and providing the “necessary training and
administrative support for local filing officers and candidates.” The
Secretary also claims that the delay in the county roll-out resulted from
issues with AVID. But since her office is responsible for operating and
maintaining AVID, this delay seems to underscore the impracticability of
expanding E-Qual here. And we are left to speculate as to why, on a vastly
larger project, similar obstacles would not occur. Indeed, in a rather telling
statement, she asks us to limit E-Qual to currently filed initiatives. We
cannot, of course, on constitutional grounds, provide relief to some
initiatives in the face of COVID-19 and not others.
¶96 In short, E-Qual does not provide a practical, available
alternative to Section 1(9)’s verification procedure. The record does not
establish how the Secretary can expand E-Qual to process initiative
petitions without additional staff and funding. And if she cannot expand
E-Qual here, the proffered remedy could be worse than the problem.
Specifically, if we grant Petitioners access to E-Qual, and the system fails,
they would, relying on the Secretary’s avowals, be more disadvantaged
than if they attempted to obtain in-person signatures.
¶97 The dissent contends that Section 1(9) is not the least
restrictive means to advance the state’s interest, suggesting that reducing
the signature requirement or permitting virtual signature collection, as
mentioned by the Intervenor-Respondent Attorney General, might be less
restrictive alternatives. But in determining whether a law is narrowly
tailored, we need not consider every “conceivable” alternative, see Hardesty,
222 Ariz. at 368 ¶ 21, and the Attorney General does not ask for either of the
dissent’s suggested remedies. Rather, the Attorney General only briefly
comments that Petitioners failed to explore these alternatives by requesting
the drastic remedy of striking down Section 1(9). Simply put, the Attorney
General insists that Section 1(9) is constitutional, and Petitioners are not
entitled to any relief.
¶98 The dissent also suggests an extraordinary remedy by
proposing that we enjoin the Secretary from enforcing Section 1(9) without
ordering she expand E-Qual. As a practical matter, this could leave
Petitioners with no means to submit electronic signatures, effectively
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Opinion of the Court
denying all relief. The dissent also offers that “the state” might impose new
verification requirements “through executive order or otherwise.” But this
solution is neither viable nor constitutional. The Governor and Secretary
lack the constitutional authority to unilaterally rewrite Title 19’s verification
scheme. And even if Section 1(9) were eliminated and the legislature tried
to create a new statutory verification scheme that did not unreasonably
hinder or restrict other constitutional provisions, see Turley, 27 Ariz. App.
at 348, this is an impractical suggestion given Petitioners’ need for
immediate, final relief.
¶99 At bottom, there are less extreme solutions than eliminating a
constitutional provision in hopes that another government office will—
without constitutional authority—replace it. Petitioners instead might have
tried, as Respondents suggested, single-use pens, advertising through
social media, or scheduling appointments with signers while maintaining a
six-foot distance. In fact, Petitioners’ collection of more than one million
signatures without E-Qual indicates they did just that.
VII.
¶100 Finally, Petitioners claim that Section 1(9) violates the Arizona
Constitution’s guarantees of equal protection, due process, and free speech.
But because Petitioners have not explained how these provisions, in the
context of ballot restrictions, afford them greater protection than the Federal
Constitution, we do not address them here. See State v. Jean, 243 Ariz. 331,
341–42 ¶ 39 (2018) (stating that a party forfeits a state constitutional claim
by “[m]erely referring to the Arizona Constitution” and failing to develop
the argument); State v. Fisher, 226 Ariz. 563, 565 n.3 (2011) (declining to
address a state constitutional claim where the party failed to develop a
“separate argument based on th[e] provision or explain how [the] analysis”
should differ from federal jurisprudence).
Conclusion
¶101 For the foregoing reasons, we deny Petitioners’ requested
relief.
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Arizonans For Second Chances, et al. v. Hobbs
JUSTICE LOPEZ, joined by JUSTICE MONTGOMERY, concurring
LOPEZ, J. joined by MONTGOMERY, J., concurring.
¶102 The dissent rightly laments the costs of the pandemic to our
citizens’ “health, employment, schooling, mobility, social connections, and
finances.” Infra ¶ 119. We share this sentiment, for we are all in this
together. And we do not discount Petitioners’ very real dilemma borne of
the impediments posed by the pandemic to their efforts to qualify
initiatives for the ballot. But, respectfully, Petitioners’ requested cure –
effective suspension of constitutional and statutory law and recrafting of
essential election provisions on the fly by judicial fiat – is worse than the
disease. It is far preferable to face the pandemic’s circumstantial barriers to
signature gathering and to bear the theoretical risk that initiative ballot
access may be hindered in a single election cycle, when those costs lay solely
at the feet of the pandemic, than to diminish the rule of law forever by the
hand of this Court. Cf. Korematsu, 323 U.S. at 245-46 (Jackson, J., dissenting)
(warning that a military official’s overstepping of the bounds of the
constitution is an incident, “[b]ut if we review and approve, that passing
incident becomes the doctrine of the Constitution”).
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Arizonans For Second Chances, et al. v. Hobbs
VICE CHIEF JUSTICE TIMMER, concurring in Parts II and III, and
dissenting in Parts IV-VII.
TIMMER, V. C. J., concurring in part and dissenting in part.
¶103 Life as we know it has been upended by the COVID-19
pandemic sweeping the world. On the heels of public health emergencies
declared nationally and globally, Governor Douglas A. Ducey declared a
public health emergency in Arizona on March 11, 2020 “due to the necessity
to prepare for, prevent, respond to, and mitigate” the “community spread”
of COVID-19. See Exec. Orders Nos. 2020-07, 2020-09.
¶104 During the weeks that followed, the Governor issued several
executive orders aimed at slowing the virus’s spread until March 30, when
he issued a “Stay-at-Home” order. See Exec. Order No. 2020-18. Among
other things, he ordered everyone in Arizona to stay home, with limited
exceptions, and maintain at least a six-foot physical distance from others
while in public. See id. Movie theatres, gyms, restaurant dine-in services,
hair salons and the like were closed. See id.; Exec. Order No. 2020-09.
Schools shut their doors. See Exec. Order No. 2020-18. The Arizona
Department of Health Services advised “canceling or postponing
gatherings of 10 or more people,” and public events were cancelled. Id. The
Centers for Disease Control and Prevention advised people to “[r]educe
sharing of common spaces and frequently touched objects” to minimize
exposure. Guidance for Cleaning and Disinfecting, Centers for Disease
Control and Prevention, https://www.cdc.gov/coronavirus/2019-
ncov/community/cleaning-disinfecting-decision-tool.html (last updated
May 7, 2020). The Stay-at-Home order initially remained in effect until
April 30, and, as of May 13, the date we issued our order denying relief in
this case, it remained in effect, with modifications. See Exec. Orders Nos.
2020-33, 2020-36. These were the circumstances Petitioners navigated in
gathering petition signatures before the July 2 submission deadline.
¶105 I join in parts II and III of the majority’s decision. I disagree,
however, with the remainder. Instead, I conclude that, as applied here, the
State’s strict enforcement of the Arizona Constitution’s in-person signature
and verification requirements (hereinafter, the “wet-signature
requirement”), Ariz. Const. art. 4, pt. 1, § 1(9), and Governor Ducey’s Stay-
at-Home order during the current pandemic combined to impinge
individuals’ voting and associational rights in violation of the First and
Fourteenth Amendments to the United States Constitution.
¶106 Although Arizona is not required to grant people the right to
enact laws through the initiative process, having done so, it does not have
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VICE CHIEF JUSTICE TIMMER, concurring in Parts II and III, and
dissenting in Parts IV-VII.
free rein in regulating that right. See Meyer v. Grant, 486 U.S. 414, 424–25
(1988) (rejecting Colorado’s assertion that because the initiative is a state-
created right, the state is free to impose any limitation for its exercise). As
pertinent here, ballot-access restrictions for initiative petitions, as for
candidates, cannot unduly or unfairly burden the fundamental “right of
individuals to associate for the advancement of political beliefs, and the
right of qualified voters, regardless of their political persuasion, to cast their
votes effectively.” Anderson v. Celebrezze, 460 U.S. 780, 787–88 (1983)
(quoting Williams v. Rhodes, 393 U.S. 23, 30 (1968)); see also Meyer, 486 U.S. at421–22 (concluding that the circulation of an initiative petition “involves
the type of interactive communication concerning political change that is
appropriately described as ‘core political speech’”); Idaho Coal. United for
Bears v. Cenarrusa, 342 F.3d 1073, 1077 (9th Cir. 2003) (observing that
petitions to place initiative measures on the ballot implicate the
fundamental right to vote); Lemons v. Bradbury, 538 F.3d 1098, 1102 (9th Cir.
2008) (to same effect). Indisputably, the rights to engage in political
discourse and to vote “rank among our most precious freedoms.” Anderson,
460 U.S. at 787 (quoting Williams, 393 U.S. at 30).
¶107 To decide whether a ballot-access restriction improperly
burdens First Amendment rights, I agree with the majority that we apply
the framework set out in Anderson, as refined by Burdick v. Takushi, 504 U.S.
428, 434 (1992). We initially examine the “character and magnitude of the
asserted injury” on individual constitutional rights. Anderson, 460 U.S. at
789. If the burden is “severe,” we apply strict scrutiny, upholding the
restriction only if it is “narrowly drawn to advance a state interest of
compelling importance.” See Burdick, 504 U.S. at 434 (quoting Norman v.
Reed, 502 U.S. 279, 289 (1992)). If the burden is reasonable and
nondiscriminatory, we will uphold the restriction if justified by a state’s
important regulatory interests. See Anderson, 460 U.S. at 788; Burdick, 504
U.S. at 434.
¶108 Importantly, in applying the Anderson/Burdick framework,
we consider the electorate’s rights as well as Petitioners’ rights. See
Anderson, 460 U.S. at 786 (recognizing that “the rights of voters and the
rights of candidates do not lend themselves to neat separation; laws that
affect candidates always have at least some theoretical, correlative effect on
voters” (quoting Bullock v. Carter, 405 U.S. 134, 143 (1972))); Burdick, 504 U.S.
at 433–34 (focusing the inquiry on whether a challenged law unduly affects
“the individual’s right to vote and his right to associate with others for
37
Arizonans For Second Chances, et al. v. Hobbs
VICE CHIEF JUSTICE TIMMER, concurring in Parts II and III, and
dissenting in Parts IV-VII.
political ends” (quoting Anderson, 460 U.S. at 788)). The majority loses sight
of the electorate’s rights, which are never touched on.
¶109 Unlike my colleagues, I conclude that the one-two-three
punch delivered by the wet-signature requirement in tandem with the Stay-
at-Home order and the pandemic severely burdened individuals’ voting
and associational rights. See Williams, 393 U.S. at 34 (examining “the totality
of the Ohio restrictive laws taken as a whole” to decide whether the burden
imposed violates equal protection); Goldstein v. Sec’y of Commonwealth, 142
N.E.3d 560, 570 (Mass. 2020) (recognizing that “statutory requirements that
were once considered constitutionally permissible may later be found to
interfere significantly with a fundamental right as societal conditions and
technology change”). At a time when Arizonans were acclimating to
wearing masks, staying at least six feet away from others, and all but
dousing themselves in hand sanitizer, only the hardiest permitted a
stranger to approach to discuss an initiative petition or obtain a signature.
This was so even though the Stay-at-Home order explicitly permitted
Arizonans to “engage in constitutionally protected activities” with
“appropriate physical distancing.” See Exec. Order No. 2020-18.
Declarations submitted by Petitioners and amici evidence this common-
sense conclusion:
• Save Our Schools Arizona, which relied solely on unpaid
volunteers to circulate petitions, saw signature-gathering “slowed to a near-
halt” because circulators could no longer collect signatures at large-scale
events and “where there [were] still potential signers out and about, they
[were] increasingly hesitant to interact despite the use of mitigation
measures by petition circulators.”
• AZ Petition Partners, LLC, a petition gathering and
consulting firm for three Petitioners, required its 330 employed petition
circulators to use hand sanitizer and single-use pens and to disinfect
clipboards and other materials used in gathering signatures. Regardless,
circulators reported that potential signers gathered in any significant
number, such as in lines at a grocery store, were “increasingly hesitant to
interact with petition circulators” before the Stay-at-Home order and were
“even less likely” to interact or sign a petition after implementation of that
order.
• Arizona Grassroots Advocates, LLC, gathered signatures for
Petitioner Second Chances, Rehabilitation, and Public Safety Act, primarily
going door-to-door and interacting with residents. As the virus spread, the
38
Arizonans For Second Chances, et al. v. Hobbs
VICE CHIEF JUSTICE TIMMER, concurring in Parts II and III, and
dissenting in Parts IV-VII.
LLC’s 156 circulators used appropriate social distancing, wore gloves, and
offered hand sanitizer to residents and the option of using residents’ own
pens to sign petitions. Despite these precautions, circulators reported that
“people were less and less willing to open their doors.” After
implementation of the Governor’s Stay-at-Home order, the LLC
experienced “another significant drop” in signatures as “people [were]
even less likely to open their doors.” And when they did so, “they
overwhelmingly refuse[d] to touch the clipboard, petition sheet, and pens
necessary to sign the petition,” and many commented that circulators
should not be going door-to-door as “it [was] not safe or legal.” On at least
two occasions, homeowners threatened to call the police.
• Eighty-two-year-old Philip J. Adelman, a retired U.S. Air
Force lieutenant colonel, signed many initiative petitions throughout the
years and “had every intention of continuing to do so during this year’s
election cycle.” But the senior living community where he and his wife
reside banned visitors from the community, including petition circulators,
except in emergency or end-of-life situations. Residents were also
prohibited from leaving the community, except to receive medical care. He
lamented that “without the opportunity to sign petitions via an online
mechanism,” he and others in senior living communities in Arizona
“[would] be deprived of this important right to participate directly in our
democracy.”
• Bridget Olson, a sixty-five-year-old retired teacher,
volunteered to circulate petitions for the Save Our Schools Act initiative.
She stopped doing so in mid-March because “older” Arizonans are at risk
of becoming ill with COVID-19 and she did not wish to potentially expose
petition signers to the virus. Before the pandemic, she had circulated
petitions in retirement communities and planned to circulate petitions at a
group home and rehabilitation center but had to cancel when informed that
“[n]o visitors are allowed,” in light of the pandemic.
¶110 I have no trouble concluding that the wet-signature
requirement and Governor Ducey’s Stay-at-Home order combined during
the pandemic to severely burden individuals’ First and Fourteenth
Amendment rights to vote and to associate to engage in political discourse.
See Goldstein, 142 N.E.3d at 571 (“No fair-minded person can dispute that
the fundamental right to run for elective office has been unconstitutionally
burdened or interfered with by the need to obtain the required ‘wet’
signatures in the midst of this pandemic.”). The only way to qualify an
39
Arizonans For Second Chances, et al. v. Hobbs
VICE CHIEF JUSTICE TIMMER, concurring in Parts II and III, and
dissenting in Parts IV-VII.
initiative for the ballot is to obtain a sufficient number of wet signatures
gathered in the physical presence of circulators—an improbable feat during
the pandemic. Cf. Burdick, 504 U.S. at 441 (looking at Hawaii’s entire
electoral system in deciding whether, despite the ban on write-in voting,
candidates were afforded “constitutionally sufficient ballot access”).
Obviously, without initiatives on the ballot, Arizonans could not fully
exercise their rights to associate and debate the merits of those proposals or
vote on them. See Meyer, 486 U.S. at 421–23 (concluding that restrictions on
the initiative process can severely burden “core political speech” by making
it less likely that an initiative will qualify for the ballot, thus limiting
proponents’ ability “to make the matter the focus of statewide discussion”);
Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979) (“By
limiting the choices available to voters, the State impairs the voters’ ability
to express their political preferences.”). Strict scrutiny review is warranted.
See Burdick, 504 U.S. at 434.
¶111 The majority reaches the opposite conclusion. It reasons that
Petitioners failed to demonstrate a severe burden on voting and
associational rights because they were not reasonably diligent in collecting
signatures, despite uncontested evidence that all four Petitioners were on-
track before the pandemic to collect a sufficient number of signatures by the
July 2 filing deadline. My colleagues essentially fault Petitioners for not
anticipating the pandemic and gathering signatures earlier, which may
have lessened the burden of the wet-signature requirement as applied here.
See supra ¶¶ 46–50. I disagree for two reasons.
¶112 First, the cases the majority relies on considered whether
ballot-access restrictions alone, applied during non-emergency times,
imposed a severe burden and appropriately asked whether a reasonably
diligent candidate or initiative proponent could be expected to gain access
to the ballot in light of these restrictions. See, e.g., Storer v. Brown, 415 U.S.
724, 742 (1974); Angle v. Miller, 673 F.3d 1122, 1133 (9th Cir. 2012). If
Petitioners had challenged the wet-signature requirement in normal times,
I would agree that a reasonably diligent initiative proponent could be
expected to gather a sufficient number of signatures to qualify for the ballot.
But Petitioners challenge the wet-signature requirement as applied in
combination with the Stay-at-Home order and during a pandemic. Thus,
the appropriate inquiry, which the majority disdains, is whether a
reasonably diligent initiative proponent could be expected to gain access to
the ballot after the Stay-at-Home order and the pandemic metaphorically
yanked the rug from under the proponent’s feet with several months
40
Arizonans For Second Chances, et al. v. Hobbs
VICE CHIEF JUSTICE TIMMER, concurring in Parts II and III, and
dissenting in Parts IV-VII.
remaining before the petition-filing deadline. See Storer, 415 U.S. at 742(acknowledging the impact of societal conditions on the constitutionality of
ballot-access restrictions by considering whether “in the context of
California politics” a reasonably diligent independent candidate could be
expected to satisfy restrictions and access the ballot).
¶113 Second, resting the severe-burden inquiry on whether
Petitioners were reasonably diligent in gathering signatures before the
Stay-at-Home order effectively required Petitioners to gather signatures
well in advance of the election. But requiring early signature gathering
when the election is far in the future itself burdens those efforts. As the
Anderson Court observed in striking Ohio’s early-filing requirement for
independent candidates, when an election is remote in time, “the obstacles
facing an independent candidate’s organizing efforts are compounded”
because “[v]olunteers are more difficult to recruit and retain, media
publicity and campaign contributions are more difficult to secure, and
voters are less interested in the campaign.” 460 U.S. at 792. The same
reasoning holds true for initiative campaigns, which may logically choose
to focus signature-gathering efforts in the election year to rally volunteers
and create a sustained “buzz” among voters in the run-up to election day.
Indeed, this may explain why proponents of the only two initiatives on the
2018 ballot filed their applications with the Secretary of State, respectively,
on February 20 and March 9 that year before starting to gather signatures.
See Voter Registration & Historical Election Data, Ariz. Sec’y of State,
https://azsos.gov/elections/voter-registration-historical-election-data
(last visited Aug. 27, 2020). And of the five citizen initiatives on the ballot
from 2010 through 2016, proponents for three of the five filed their
applications, respectively, on March 9 (twice) and March 30 in the election
years before gathering signatures. Id.¶114 The majority also cites to events that occurred after our May
13 order to justify its decision, even though, of course, those events had no
bearing on that decision. See supra ¶ 7. It notes that three of the four
Petitioners were able to collect a sufficient number of signatures to
ostensibly qualify for the ballot (one initiative was disqualified by the
Secretary for an insufficient number of valid signatures), so the burden on
voting and associational rights must not have been severe. See id. What
would my colleagues have said if only one of the Petitioners had gathered
a sufficient number of signatures? Or none? And what does it mean that
the only Petitioner not to collect sufficient signatures, Save Our Schools
Arizona, was the only Petitioner that relied exclusively on unpaid
41
Arizonans For Second Chances, et al. v. Hobbs
VICE CHIEF JUSTICE TIMMER, concurring in Parts II and III, and
dissenting in Parts IV-VII.
volunteers? Regardless, how Petitioners or other initiative proponents
ultimately fared does not shed light on whether a reasonably diligent
proponent could be expected to gather a sufficient number of signatures
after implementation of the Stay-at-Home order and during the pandemic.
And, with respect, a three-out-of-four success rate doesn’t cut it
constitutionally when assessing the burden on the “most precious” of our
constitutional rights. See Anderson, 460 U.S. at 787 (quoting Williams, 393
U.S. at 30).
¶115 Turning to strict scrutiny review, I agree with the majority
that the State has a compelling interest in ensuring the validity of
signatures, which, in turn, protects the integrity of initiative elections. See
supra ¶ 5. But I conclude that the Secretary did not satisfy her burden to
show that the wet-signature requirement is narrowly drawn to advance
that interest. See Eu v. S.F. Cty. Democratic Cent. Comm., 489 U.S. 214, 222
(1989) (placing burden of proof on the state). Federal, statewide, and
legislative candidates can collect petition signatures electronically using E-
Qual, which verifies the voter’s identity and ensures the voter is properly
registered, resides in the correct district to sign a particular petition, and is
otherwise eligible to sign that petition. According to the State Elections
Director in the Secretary’s office, E-Qual signatures are so trustworthy, they
“can generally be counted as valid without further review by the filing
officer or the County Recorder.” He also avowed that the E-Qual system
could be configured in about four weeks for use by initiative proponents in
gathering signatures. Alternatively, as Intervenor-Respondent Attorney
General pointed out, the state might have permitted use of virtual platforms
by circulators to gather signatures just as “signers and notary publics [may]
meet using the internet and audio-video technology to verify identity.” See
Exec. Order No. 2020-26. The fact that less restrictive alternatives to the
wet-signature requirement existed demonstrates that the requirement,
although likely narrowly drawn when created, was not narrowly drawn to
advance the state’s interest in pandemic circumstances. See Chelsea
Collaborative, Inc. v. Sec’y of Commonwealth, 100 N.E.3d 326, 334 (Mass. 2018)
(“What was perhaps a reasonable regulation that insignificantly interfered
with the right to vote thirty-five, one hundred, or 200 years ago may be
considered to significantly interfere with the exercise of that right today in
light of technological change and the reasonable expectations of
Massachusetts citizens.”).
¶116 Other jurisdictions that have addressed comparable issues
during this pandemic, albeit not all jurisdictions, have reached similar
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Arizonans For Second Chances, et al. v. Hobbs
VICE CHIEF JUSTICE TIMMER, concurring in Parts II and III, and
dissenting in Parts IV-VII.
conclusions. See, e.g., Esshaki v. Whitmer, 813 F. App’x 170, 171–72 (6th Cir.
2020) (concluding that “the combination of the State’s strict enforcement of
the ballot-access provisions and the Stay-at-Home Orders imposed a severe
burden on the plaintiff’s ballot access” and applying strict scrutiny to hold
that “the [restrictive] provisions are not narrowly tailored to the present
circumstances” and are therefore unconstitutional as applied); Libertarian
Party of Ill. v. Pritzker, No. 20-cv-2112, 2020 WL 1951687 (N.D. Ill. Apr. 23,
2020) (enjoining Illinois’s wet-signature and verification requirements in
favor of electronic signatures); Goldstein, 142 N.E.3d at 571 (“There are
alternatives that could preserve the legislative purpose that a candidate
demonstrate a certain level of support in order to win a place on the ballot
and yet protect the public from the health risks associated with obtaining
‘wet’ signatures.”); Omari Faulkner for Va. v. Va. Dep’t of Elections, CL 20-1456
(Va. Cir. Ct. Mar. 25, 2020) (reducing signature-gathering requirements for
candidates and allowing electronic signatures); Dennis v. Galvin, No. SJ-
2020-278 (Mass. Apr. 29, 2020) (extending Goldstein to allow initiative
proponents to collect signatures electronically). Other states have
permitted electronic signatures by executive orders. See Thompson v.
DeWine, No. 2:20-CV-2129, 2020 WL 2614447, at *5 (S.D. Ohio May 22, 2020)
(collecting orders).
¶117 Having found that the wet-signature requirement violated
individuals’ First and Fourteenth Amendment rights as applied in these
unique circumstances, I conclude Petitioners were entitled to relief. They
asked us to order the Secretary to grant them access to E-Qual and to enjoin
the Secretary from enforcing any Arizona law precluding that use. I would
not have granted this precise relief, because it is not our role to direct the
process for qualifying initiative petitions for the ballot. But it is our role to
enjoin enforcement of unconstitutional ballot-access restrictions, even those
provided by our state constitution. See Reynolds v. Sims, 377 U.S. 533, 584
(1964) (“When there is an unavoidable conflict between the federal and a
State Constitution, the Supremacy Clause of course controls.”). Thus, I
would have enjoined the Secretary from enforcing the wet-signature
requirement. See Fairness & Accountability in Ins. Reform v. Greene, 180 Ariz.
582, 592–93 (1994) (finding a violation of election statute and imposing a
different remedy from ones requested by plaintiffs). This relief would not
have foreclosed the state from putting new requirements in place, through
executive order or otherwise, designed to verify petition signatures using
means that do not severely burden the electorate’s voting and associational
rights. Cf. Esshaki, 813 F. App’x at 171 (prohibiting enforcement of ballot-
43
Arizonans For Second Chances, et al. v. Hobbs
VICE CHIEF JUSTICE TIMMER, concurring in Parts II and III, and
dissenting in Parts IV-VII.
access restrictions unless the State “provides some reasonable
accommodations to aggrieved candidates”).
¶118 Courts must refrain from compromising the rule of law
simply to ease hardships faced during an emergency. The long-term harm
to this bedrock principle would not be worth any fleeting benefit. But when
a state law restricting access to the ballot applies to violate fundamental
federal constitutional rights to vote and to associate, as occurred here, we
can only preserve the rule of law by striking that restriction.
¶119 The current pandemic has deeply impacted Arizonans’
health, employment, schooling, mobility, social connections, and finances.
I’m saddened to add infringement of our “most precious” voting and
associational rights to that list.
44
Arizonans For Second Chances, et al. v. Hobbs
JUSTICE BOLICK, dissenting from the grant of jurisdiction
BOLICK, J., dissenting from the grant of jurisdiction.
¶120 Special actions are appropriate only in limited circumstances,
and those circumstances are not present here. We should decline to
exercise our discretion to grant jurisdiction in this case.
¶121 Rule 3 of the Rules of Procedure for Special Actions states as
follows:
The only questions that may be raised in a special
action are:
(a) Whether the defendant has failed to exercise
discretion which he has a duty to exercise; or to
perform a duty required by law as to which he has
no discretion; or
(b) Whether the defendant has proceeded or is
threatening to proceed without or in excess of
jurisdiction or legal authority; or
(c) Whether a determination was arbitrary or an abuse
of discretion.
Ariz. R.P. Spec. Act. 3.
¶122 A special action requests extraordinary relief, acceptance of
jurisdiction is highly discretionary, and the plaintiff bears the burden of
persuasion to establish the discretionary factors. Id. state bar committee’s
note. If the plaintiff fails to establish one of the grounds for special action,
review should be denied. See, e.g., Kord’s Ambulance Serv., Inc. v. City of
Tucson, 157 Ariz. 311, 313 (App. 1988). Although special action relief may
be appropriate where a prompt legal determination is necessary, it is not
enough that proceedings in trial court may be time-consuming. See, e.g.,
Caruso v. Superior Court, 100 Ariz. 167, 171 (1966); Neary v. Frantz, 141 Ariz.
171, 177 (App. 1984) (“A remedy does not become inadequate merely
because more time would transpire by pursuing a conventional action.”).
Rather, as a threshold requirement, Petitioners must demonstrate that the
action presents a question appropriate for special action review.
¶123 In their special action petition, Petitioners asserted
jurisdiction under Rule 7(b), which allows Petitioners to file a special action
in an appellate rather than trial court in the first instance if they can
45
Arizonans For Second Chances, et al. v. Hobbs
JUSTICE BOLICK, dissenting from the grant of jurisdiction
persuade the court that their reasons for doing so are sufficient. Ariz. R.P.
Spec. Act. 7(b). However, Rule 7 does not expand the questions that may
be presented under Rule 3. Indeed, Rule 7(e) provides that a petition must
contain a jurisdictional statement, and Rule 7(b) requires that Petitioners
must “also” explain why they are seeking initial relief in an appellate court.
That language demonstrates that Rule 7(b) is not an independent source of
jurisdiction, and that the Rules’ other jurisdictional prerequisites must be
met.
¶124 Petitioners made no allegation that the question presented
was encompassed within the narrow range of issues permitted in a special
action by Rule 3. As stated by Petitioners, the question presented was
whether “the exclusion of the Initiative Proponents from [the E-Qual]
system under these circumstances violate[s] their constitutional rights.”
¶125 Although supporting the petition, respondent Secretary of
State did not address this Court’s jurisdiction. In their response as
intervenors, the Speaker of the Arizona House of Representatives and
President of the Arizona Senate argued that the Court should decline
jurisdiction because the petition did not satisfy Rule 3. In their reply to that
response and to intervenor Attorney General’s jurisdictional arguments,
Petitioners still did not address Rule 3. Rather, they asserted the petition
“presents a novel question of Arizona constitutional law of pressing
statewide importance.”
¶126 That assertion is undeniable and would present strong
grounds for this Court to grant a petition for review of an appellate court
decision. See, e.g., State v. Reed, 248 Ariz. 72, 75 ¶ 5 (2020). And it is certainly
relevant to the Court’s exercise of special action jurisdiction. See, e.g.,
Randolph v. Groscost, 195 Ariz. 423, 425 ¶ 6 (1999). But it is not adequate to
invoke the extraordinary relief of a special action. Rather, as Rule 3 makes
unequivocal, the “only questions that may be raised in a special action” are
those specified in the rule. Ariz. R.P. Spec. Act. 3.
¶127 This petition presents none of those questions. It does not
allege that respondent Secretary of State has discretion to provide the relief
requested, nor the duty to do so. Ariz. R.P. Spec. Act. 3(a). It does not allege
that respondent has proceeded or is threatening to proceed in any manner,
much less in excess of jurisdiction or legal authority. Id. at 3(b). Nor does
it allege that an official has made any “determination” affecting Petitioners’
rights or interests, whether or not arbitrary and capricious or an abuse of
46
Arizonans For Second Chances, et al. v. Hobbs
JUSTICE BOLICK, dissenting from the grant of jurisdiction
discretion. Id. at 3(c). Because the petition does not present a question that
may be raised in a special action, the prerequisites are not met to grant
jurisdiction or extraordinary relief.
¶128 The limited questions we are authorized to consider in a
special action all present clear and narrow questions of law that the Court
may, in many circumstances, be able to readily decide in short order. Our
decisions have consistently recognized that special actions must present
purely legal issues. See, e.g., Randolph, 195 Ariz. at 425 ¶ 6. But that is not
enough; they must present the type of issues that were actionable under the
common law writs of mandamus or prohibition, which are now
consolidated within our special action procedures. Ariz. Indep. Redistricting
Comm’n v. Brewer, 229 Ariz. 347, 350 ¶ 11 (2012). Thus, our special action
decisions typically involve issues of legal authority or obligation on the part
of public officials and entities. See, e.g., id. (challenging Governor’s legal
authority to remove the chairperson of the Arizona Independent
Redistricting Commission); Ariz. Early Childhood Dev. & Health Bd. v. Brewer,
221 Ariz. 467, 470 ¶ 11 (2009) (finding no legislative authority to transfer
tobacco tax funds to the general fund); Forty-Seventh Legislature v.
Napolitano, 213 Ariz. 482, 485–86 ¶ 11 (2006) (holding that a dispute over
“[l]imiting the actions of each branch of government to those conferred
upon it by the constitution” makes it “one of those rare cases that justify the
exercise of our special action jurisdiction”).
¶129 Despite the obvious importance of the issues presented, this
is not one of the exceptional cases that call upon us to determine boundaries
of constitutional authority or to require public officials to fulfill their clear
legal obligations. No one, including respondent Secretary of State, asserts
that she possesses authority, discretion, or obligation regarding the relief
sought. Rather, the action is premised on the argument that denial of access
to E-Qual violates Petitioners’ constitutional rights, which is quite different
from asserting that the Secretary has discretion and a duty to remedy that
violation. Had Petitioners approached the Secretary with a colorable
demand to exercise authority to apply E-Qual to initiatives, chances are,
given her posture in this case, she would have done so. But no one here
asserts she has such authority and refused to exercise it, which is a Rule 3
predicate for a special action sounding in mandamus.
¶130 Additionally, the action requires us to consider difficult
factual issues that are disputed by the parties, including the efficacy of
adapting the E-Qual system to the unique constitutional requirements
pertaining to initiatives. Respondent Secretary suggests that we would
47
Arizonans For Second Chances, et al. v. Hobbs
JUSTICE BOLICK, dissenting from the grant of jurisdiction
have to supplement our ruling that the exclusion of initiatives from the
system is unconstitutional with additional orders making it possible to
effectuate the relief requested. Even if we had authority to do so, such
orders would necessarily be predicated on factual determinations that are
outside the proper scope of a special action, which is limited to considering
purely legal issues of a discrete nature.
¶131 For all of the foregoing reasons, I dissent from the decision to
grant jurisdiction; and because the Court prematurely resolved important
constitutional issues without the benefit of an evidentiary record, I express
no opinion on the merits.
48