Supreme Court orders GOP to rewrite ‘argumentative’ voucher measure summary

Until now, the program has had few guardrails and that, combined with a universal expansion in 2022, resulted in an annual cost to the state of more than $1 billion and a wave of questionable purchases, like pianos and luxury car driving lessons. 

But the vouchers, known formally as Empowerment Scholarship Accounts, are the crown jewel for Arizona Republicans, who have consistently resisted adding any new regulations to the program. In their view, Prop. 212 is an existential threat to vouchers specifically and school choice more broadly. 

As a result, they’ve sought to both defeat the initiative and fend off future efforts to restrain the program. Their chief tactic was to put their own proposal on November’s ballot that purported to prevent voucher money from being taken from military families, but also would nullify Prop. 212’s reforms — even if voters approve it later this year — and made any future changes to the program as a whole nearly impossible. A Maricopa County Superior Court judge struck that proposal from November’s ballot last month, though Republicans are appealing that ruling. 

In yet another attempt to foil Prop. 212, GOP lawmakers crafted a description of it for the publicity pamphlet that will be mailed to every voter that a judge said was illegally designed to scare voters into opposing the ballot measure. 

A provision in Prop. 212 allows the campaign behind the initiative to “initiate or intervene in any action or proceeding to enforce or defend” the laws it creates. Supporters of Prop. 212 argued in court filings that the provision is intended to allow the committee to get involved in lawsuits challenging the ballot measure’s constitutionality, validity or enforcement in the event that the attorney general or legislature opts not to defend it. 

But Republicans crafted a publicity pamphlet description saying that backing the initiative would give the campaign the “power to sue the families and private schools that participate in the program.”  

On Monday, Maricopa County Superior Court Judge Daniel Martin ruled that the description, which Arizona law requires to be impartial, must be rewritten. Republicans quickly appealed to the state supreme court justices, asking them to reverse Martin’s decision. 

But the justices were unimpressed, swiftly ruling that the description appears to advocate against the initiative. Decades of previous court rulings have established that the language in the publicity pamphlet must not be provocative, tinged with partisan intent or attempt to convince voters one way or the other. 

In the ruling, Chief Justice Ann Scott Timmer pointed out that the summary of Prop. 212 falls short of the impartiality standard baked into state law and cherry-picks one interpretation of one provision to cast the entire ballot measure in a negative light. 

“The proposed phrasing is argumentative, speculative, and non-neutral (in the sense that it leans toward one side of the argument) in that it does not simply set forth the operative language in question but highlights the possible effects of only part of it,” she wrote on behalf of the high court. 

Timmer agreed that the initiative could be read as allowing lawsuits against families and private schools that misuse school vouchers, but noted that the broader context of the initiative favors the argument from supporters of the initiative, who say that it only allows the political campaign to join lawsuits. In their original complaint, the Protect Education Accountability Now committee said that the power to launch legal action to enforce the requirements of Prop. 212 is left up to the state attorney general. 

The description of what the ballot measure does, Timmer wrote, ultimately leaves voters in the dark because it doesn’t include the interpretation that voucher supporters are advancing, just the one that makes the ballot initiative look bad. 

“The analysis does not inform voters in a neutral manner of the full scope of what the Committee would be authorized to do,” she wrote.

The state supreme court’s decision preserve’s the lower court’s order that Republican lawmakers rewrite their summary of the initiative.

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