A ballot measure that would ask voters to institute sweeping regulations to Arizona’s billion-dollar universal school voucher program is effectively dead.
The Arizona Supreme Court on Tuesday ruled against the backers of Proposition 212, upholding a lower court’s decision that disqualified a number of voter signatures in support of the measure, putting it below the threshold to make the ballot.
Prop. 212, also known as the Protect Education Act, submitted almost 420,000 signatures from supportive voters to the Secretary of State’s Office in July. The Secretary of State’s Office determined that about 389,000 were eligible for verification, but a trial court disqualified a number of those signatures during litigation over double-counting of signatures.
Protect Education Accountable Now committee argued that removing signatures during litigation — as the lower court judge did — and then applying validity rates that already factor in double-counting that may have been done as the counties verified signatures incorrectly invalidated 24,000 signatures in support of Prop. 212.
Opponents to the proposition argued that the judge correctly applied existing case law and accused the proponents of wanting to count duplicate signatures toward the total needed to make the ballot.
The proposition sought to add an income eligibility cap to the program, crack down on misuse of funds for luxury items and require fingerprint clearance for schools that accept voucher payments.
The Arizona Supreme Court ultimately sided with the Goldwater Institute and the Arizona Free Enterprise Club. Both organizations helped lawmakers create the Empowerment Scholarship Account program, the voucher system used in Arizona.
“The Committee contends that this approach double-counts. It reasons that because duplicates are identified in the sample, and the sample drives the projected validity rate, removing the same duplicates again from the total subtracts them twice; from this it argues that honoring the retain-one rule requires either crediting each duplicate set with an additional signature or doubling the projection multiplier. We are not persuaded,” Chief Justice Ann Scott Timmer wrote. “The Committee’s proposed adjustments would credit the petition with signatures the Legislature has directed be removed.”
Without those signatures, Prop. 212 cannot meet the 75.2% validity rate needed to qualify for the ballot.
The Court ordered that the case be returned to the lower court where the validity rate will be applied to the signatures that have been validated by the state’s 15 counties.
Educators and backers of the initiative decried the court’s ruling.
“The lengths that the voucher lobby went to invalidate signatures with scorched-earth legal objections shows just how terrified they are of Arizona voters actually having a say in how our tax dollars are spent, and how sure they were that Arizona voters would prioritize funding a robust public education system over a $1 billion ESA voucher program siphoning our tax dollars to unregulated private schools that pick and choose students and create a segregated system of haves and have-nots,” Save Our Schools Arizona Director Beth Lewis said in a statement.
The Arizona Education Association, the state’s largest teacher’s union, said it intends to shift its focus from the initiative to supporting “pro-education candidates” in the upcoming midterm election.
“Millions of Arizonans recognize that billion dollar fraud committed with ESA vouchers must be stopped, but unfortunately, they won’t get a chance to do so in November. Prop 212 would have protected students and returned money to our underfunded public schools,” AEA President Marisol Garcia said in a statement. “Arizona educators will dedicate the next 11 weeks to supporting our pro-education candidates so that they can undo the harm that’s been done to our schools.”
Meanwhile, opponents of Prop. 212 are celebrating the decision as a “major victory for school choice” including former Republican Gov. Doug Ducey, who helped create and champion the program.
“Tens of thousands of parents and students across Arizona are breathing a sigh of relief today,” Ducey, who is a board member of the Goldwater Institute and a chairman for the pro-ESA Institute for American Prosperity said in a statement. “Today’s ruling should send a clear message to any other anti-parent, anti-school-choice organization: Arizonans overwhelmingly embrace school choice and will continue to do so, regardless of how many millions of dollars these groups waste trying to take it away.”
The court also ruled against both parties on the question of “residence address” for petition circulators.
The Goldwater Institute and Arizona Free Enterprise Club argued that a petition circulator’s “residence address” means their permanent residence and a ruling in their favor would have likely put an end to the use of out-of-state petition gatherers who often stay at hotels while they gather signatures.
“We reject both Challengers’ and the Committee’s efforts to expand or limit the definition of ‘residence’ for the circulator affidavits to anything other than a place where a person actually lives at the time the attestation is made on the affidavit,” Timmer wrote.
The court also overturned a ruling by the lower court that invalidated whole pages of signatures if someone other than a voter wrote the voter’s name or address on the sheet.
“We hold that absent additional evidence that the someone has inserted multiple addresses, thus demonstrating that the circulator’s affidavit was knowingly false or fraudulent rather than inadvertent error, the proper remedy is to void the specific signatures at issue, not the entire signature sheet,” Timmer wrote. “No such evidence was presented here beyond isolated instances of addresses with the same handwriting for persons residing at the same address.”
Around the same time the court released its ruling Tuesday, members of the Arizona Legislature convened to discuss ballot language for the proposition. In a separate ruling, the Arizona Supreme Court ordered the legislature to rewrite the ballot description of Prop. 212 which the court said broke state law by trying to sway voters against it.
“The trial court ruled that you were wrong. The Arizona Supreme Court ruled that you were wrong, period. This committee acted illegally, unlawfully,” House Minority Leader Oscar De Los Santos said at the meeting. “That was wrong and it was illegal.”
Speaker of the House Steve Montenegro took umbrage with De Los Santos’ framing, calling it a “stretch.”
“It is not illegal to pass a law that is later ruled unconstitutional,” Sen. John Kavanagh, R-Fountain Hills, said in response to comments by De Los Santos and others. “That is not illegal and calling it illegal is part of the partisan bickering and gasoline throwing that voters are sick and tired of.”
The ballot language passed out of the committee along party lines.
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