Arizonans pride themselves on being an independent bunch.
We prefer our politicians as mavericks instead of sheep. We relish our ability to craft our own laws and outright reject those made by legislators.*
That latter example – referenda and citizen initiatives – is what’s known in the political science arena as “direct democracy.” They are guaranteed to us in our state’s constitution, but have been under increasing attack by politicians and special interest groups who seem to believe every day Arizonans are just too stupid to legislate.
Efforts to weaken direct democracy intensified three years ago after voters approved – by a wide margin – an increase to the state’s minimum wage and a guarantee of paid sick leave for all employees.
The passage of the Fair Wages and Healthy Families Act was a huge blow to the Arizona Chamber of Commerce and Industry, which is possibly the most powerful special interest groups at the state Capitol.
Since then, the Chamber has convinced many of its legislative sheep to pass a number of laws creating additional hurdles for referendums and initiatives, making the process more expensive and time consuming.
In spite of these obstacles, several well-funded campaigns launched this year and were expected to be on the ballot this fall.
Then the COVID-19 pandemic hit, and everything came to screeching halt.
It’s pretty much impossible to gather hundreds of thousands of signatures at a time when events big and small have been cancelled, and people have been asked to stay in their houses and maintain a six-foot distance from others if they do venture out.
The only safe way to collect signatures at this point would be some type of a system that forgoes pen and paper in favor of electronic signature gathering.
Luckily, Arizona put a system like that in place six years ago when it developed E-Qual, a website that allows voters to electronically sign campaign petitions for statewide and legislative candidates.
The process is safe and easy, but because it was created by a body of politicians whose majority derides direct democracy because of the check it places on their power, it doesn’t allow citizen-led initiatives to partake.
That may change.
Last week, four initiative campaigns petitioned the Arizona Supreme Court for emergency access to E-Qual.
They argue the pandemic has prevented them from exercising “their fundamental constitutional right to legislate by initiative,” and note that E-Qual presents a reasonable remedy to that infringement.
Arizona Republic columnist Robert Robb has suggested it’s not the Supreme Court’s place to determine which campaigns should be allowed to use electronic signature gathering – that responsibility lies with the legislature.
If we were operating under normal circumstances, I’d agree. But a once-in-a-lifetime pandemic is anything but normal.
These campaigns cannot simply wait out the crisis. Nor can they wait on the legislature, which has suspended its work and won’t return until next month, at the earliest.
The deadline to submit more than 230,000 qualified signatures is less than three months away, and these campaigns have already been stalled for several weeks.
These are not fly-by-night operations. The campaigns petitioning the court have substantial grassroots followings and a high likelihood of winning at the ballot. They include two popular public education proposals – one to restore education funding and another to limit private school vouchers – as well as campaigns to legalize marijuana and reform the criminal justice system. [not included as a plaintiff, but clearly also important to the effort is the OutlawDirtyMoney initiative]
These initiatives deserve in-depth examinations and a back-and-forth between opposing sides to explain how they will or will not benefit Arizonans. But unless they’re given an opportunity to qualify for the ballot, none of those arguments will matter.
And that’s a damn shame, because the economic fallout from COVID-19 will make several of those initiatives even more crucial than before.
I don’t know how the Arizona Supreme Court will rule on this matter. Obviously, I’m hoping they’ll weigh in on the side of the initiatives. But regardless of what happens, Arizonans should know that there are those in office who trust voters with the power of direct democracy and those who do not.
That’s worth remembering when casting your ballot this November.
*****
Unlike Julie, I believe the time has come to make the change regardless of what Bob Robb has to say about it. The emergency nature of the current crisis may end up providing a silver lining by (somehow) enabling citizens to have equal access to the E-Qual system for the purpose of exercising the political power that is inherent in the people. If the legislature (which will not reconvene anytime soon) will not or cannot, then it is proper and just for Arizona courts to enforce the Equal Protection Clause on an emergency basis now.
In the early 1990s, the civil rights of government office workers (in AZ and perhaps throughout the country) to breathe air uncontaminated by toxic tobacco smoke was the subject of legislative debate. To compromise, sorta, the state legislature enacted a temporary ban on smoking in state-owned buildings, subject to a study committee deciding in the future if the ban should be extended or lifted. The temporary ban was never lifted.
This situation today represents a natural continuation of the ongoing development of "a more perfect union... establish justice, insure domestic Tranquility... promote the general Welfare, and secure the Blessings of Liberty to ourselves and our posterity..." The technology is already in use. It SHOULD be decided in the Arizona Supreme Court based, if nothing else, on the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.
* Arizona Constitution Article 2, Section 2 states:
All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.
Article 4, Part 1, Section 1 states (in pertinent part):
Section 1. (1) Senate; house of representatives; reservation of power to people. The legislative authority of the state shall be vested in the legislature, consisting of a senate and a house of representatives, but the people reserve the power to propose laws and amendments to the constitution and to enact or reject such laws and amendments at the polls, independently of the legislature; and they also reserve, for use at their own option, the power to approve or reject at the polls any act, or item, section, or part of any act, of the legislature.
(2) Initiative power. The first of these reserved powers is the initiative. Under this power ten per centum of the qualified electors shall have the right to propose any measure, and fifteen per centum shall have the right to propose any amendment to the constitution.
(3) Referendum power; emergency measures; effective date of acts. The second of these reserved powers is the referendum. Under this power the legislature, or five per centum of the qualified electors, may order the submission to the people at the polls of any measure, or item, section, or part of any measure, enacted by the legislature, except laws immediately necessary for the preservation of the public peace, health, or safety, or for the support and maintenance of the departments of the state government and state institutions; but to allow opportunity for referendum petitions, no act passed by the legislature shall be operative for ninety days after the close of the session of the legislature enacting such measure, except such as require earlier operation to preserve the public peace, health, or safety, or to provide appropriations for the support and maintenance of the departments of the state and of state institutions; provided, that no such emergency measure shall be considered passed by the legislature unless it shall state in a separate section why it is necessary that it shall become immediately operative, and shall be approved by the affirmative votes of two-thirds of the members elected to each house of the legislature, taken by roll call of ayes and nays, and also approved by the governor; and should such measure be vetoed by the governor, it shall not become a law unless it shall be approved by the votes of three-fourths of the members elected to each house of the legislature, taken by roll call of ayes and nays.The Fourteenth Amendment of the U.S. Constitution states (in pertinent part):
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
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