Judge tosses GOP voucher measure that would have blocked all future reforms

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The measure came after a failed last-ditch effort to avoid a public vote on the voucher program led by the Arizona Education Association, the state’s largest teachers union. That proposal would have implemented more modest reforms on the universal voucher system, formally known as Empowerment Scholarship Accounts, in exchange for GOP legislators abandoning a ballot referral asking voters to effectively kill the AEA. 

That measure was also deemed unconstitutional and thrown off the ballot this week. 

House Concurrent Resolution 2048, the underlying legislation that created Proposition 145, was ostensibly designed to ensure that school voucher money for students whose parents are in the military would never be taken away. 

The impetus for the proposal was Proposition 212, an AEA-backed ballot initiative known as the Protect Education Act, that aims to place restrictions on the state’s universal voucher program. However, a provision that claws back voucher money that families had saved for college would apply to the legacy parts of the voucher system — including military families and disabled students. The GOP-backed measure would have barred that from happening.

But the ballot measure did far more than Republicans touted: Buried in the legislation is a clause that says it is not just limited to “scholarship account programs that are established and maintained by this state for only children of military families.” And it includes a clause voiding any law or voter-approved measure taking effect on or after Nov. 1, 2026 that conflicts with it — a poison pill aimed at invalidating Prop. 212 even before voters get a chance to weigh in.

The result would be permanently locking in the current scant regulations on the voucher system.

The lawsuit filed by backers of the AEA measure said tying those two provisions together in a single ballot measure violates the Arizona Constitution’s Separate Amendment Rule. Kreamer agreed. 

Senate President Warren Petersen, who is running to be attorney general, and House Speaker Steve Montenegro argued that both portions of the measure should be treated as a single subject. 

But Kreamer rejected that defense and said lawmakers bootstrapped the broad language barring any future voucher regulations or reforms into a narrowly tailored measure, violating the Single Amendment rule. Lawmakers, he noted, have never before tried to openly bar voters or future legislatures from enacting laws in the way they hoped to with Prop. 145.

“The Court agrees with Plaintiffs that the ‘no-severance clause’ contained in Subsection B is unlike any severability provision that has ever been enacted in Arizona, because instead of applying only to the bill being proposed, it would apply to invalidate future legislation,” Kreamer ruled, adding that “it would potentially force the judiciary to invalidate laws that do not violate a constitutional right.” 

Kreamer also noted that this approach by lawmakers was highly unusual. 

“The legislature has always addressed educational scholarship policy accounts in discreet, standalone legislation,” the judge wrote, adding that the measure “clearly” deviates from that approach. 

And doing that Kreamer concluded, had nothing to do with protecting military families, making it unconstitutional. 

“It concerns key aspects of judicial review, legislative power, and the separation of power between those branches,” Kreamer said. “These consequences bear no qualitative resemblance to Subsection A’s protection of military family educational accounts.” 

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