Voucher-reform measure hangs by a thread as Supreme Court weighs signatures

Among other things, Prop. 212 seeks to add an income eligibility cap to the universal voucher system, crack down on voucher misuse and require schools that accept voucher payments to meet certain educational and safety requirements.

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Although there are four separate arguments before the Supreme Court that aim to change the number of petition signatures against which to apply that validity rate, the only one that really matters for Prop. 212’s place on the ballot is how the court deals with potential double-counting of invalidated signatures.

But the ballot measure’s opponents are already claiming victory and declaring that the effort by Arizona’s largest teachers union and public school advocates to curtail the voucher system has been defeated.

“This is a major victory for Arizona parents, students, and the integrity of our elections,” Scot Mussi, president of the Arizona Free Enterprise Club, which helped lead the litigation, said in a written statement. “This anti-school choice initiative and its union backers spent more than $7 million dollars trying to dismantle school choice in our state, but they still could not collect enough lawful, valid signatures to qualify for the ballot.”

And Steve Montenegro, the Republican speaker of the Arizona House of Representatives, took a victory lap.

“The teacher unions came after Arizona parents and lost. They set out to gut Arizona’s (Empowerment Scholarship Account) program and take school choice away from families who depend on it,” he said in a statement. “Instead, Arizona voters will not face that threat on the ballot this November. That is a major victory for parents, students, and educational freedom.”

But the backers of Prop. 212 said the ballot measure’s fate is far from settled.

“Do not believe the misinformation. There are still many questions that need to be resolved,” said Olivia Fierro, a spokeswoman for the Protect Education Accountable Now committee. “As of right now, the Protect Education Act is still on the ballot.”

She told the Arizona Mirror that the campaign is in the process of reviewing the validity checks done by the counties — particularly the one submitted Monday from Maricopa County, which is home to about 60% of the state’s voters — to see if any errors were made that may increase the validity rate.

But even if errors are found and counties change their findings in a way that slightly increases the validity rate, it likely won’t be enough to keep the measure on the ballot if the state Supreme Court rejects the Protect Education Accountable Now committee’s argument about double-counted invalid signatures.

Although proponents of the Protect Education Act submitted almost 420,000 signatures in July, the Secretary of State’s Office determined that only about 389,000 were eligible for verification. 

Of that figure, a sample of 5% was randomly chosen and sent to the county where the voter claims to live for verification by that county’s recorder. The recorders confirmed whether each sampled signer was a registered, qualified elector on the date of signing, and then certified how many of its sampled signatures were disqualified during the review.

The results from all 15 counties are then aggregated into a single validity rate, which is then applied to the total universe of verifiable signatures. The 75.2% validity rate across the counties on that 5% sample is projected onto the entire eligible population instead of checking all 389,000 by hand.

Following a trial court ruling that disqualified tens of thousands of signatures that were challenged by the Arizona Free Enterprise Club and the Goldwater Institute, which helped lawmakers create the Empowerment Scholarship Account system,  the two sides agreed that about 317,000 is the absolute minimum number of valid signatures against which that validity rate will be applied, with a maximum of nearly 352,000.

Although that is far more than the minimum requirement of 255,949, the 75.2% validity rate lands almost exactly on the line that decides whether Prop. 212 survives — and which side of that line it falls depends entirely on how the Supreme Court rules on the duplicate-signature question. 

The Protect Education Accountable Now committee is asking the high court to overturn a trial court judge’s ruling on the double-counted signatures. Essentially, it is arguing that removing signatures during litigation — like the judge did — and then applying the validity rate that already accounts for the counties’ own duplicate-catching double-counts some of them. The Goldwater Institute and Arizona Free Enterprise Club say the judge correctly applied existing caselaw and the voucher opponents merely want to count known duplicates as valid signatures.

If the Supreme Court sides with the Protect Education Accountable Now committee, the initiative will have about 24,000 more signatures to apply to the validity rate, and that will give it just barely enough to qualify for the November ballot. But if those signatures aren’t added to the total, then there’s no scenario under which the 75.2% validity rate will give it enough to stay on the ballot.

The other arguments the Supreme Court must decide will have much smaller impact on Prop. 212, but could resonate in future initiative campaigns. The most consequential of those is whether the “residence address” of the petition circulator is where a person is living at the time, as the trial court concluded, or if it should be interpreted as a permanent domicile, as the Goldwater Institute and Free Enterprise Club argued.

If the court interprets “residence address” to mean a permanent place of residence, it could spell an end to the use of nomadic petition circulators who travel from state to state, staying in shelters or extended-stay hotels, on Arizona ballot campaigns.

The remaining arguments center on whether all of the signatures gathered by a circulator who gave her home address when she registered with the Secretary of State’s Office but listed a P.O. Box on the back of the initiative petition sheets should be invalidated and whether entire petition sheets should be disqualified if someone other than a voter wrote the voter’s name or address on the sheet.

The Arizona Supreme Court is expected to rule by Aug. 20 to meet a deadline for printing ballots.

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