During the 2014 regular legislative session, state legislators figured out how and passed a HB2107 to make their initial campaign hurdle -- collecting enough valid nominating signatures to get their name on the ballot -- substantially easier.
Those lawmakers knew the burden of going door to door in the summer heat was something they needed to get around. So they did.
With a great deal of satisfaction, I participated over the course of a year, up until March 2020, collecting signatures for the Outlaw Dirty Money initiative. We were on track to gather more than enough signatures to qualify the measure for the 2020 general election ballot, if not for the Covid19 pandemic.
Just days ago, the state Supreme Court explained its May ruling in the matter, which was NOT unanimous.
Vice Chief Justice Ann Timmer notably dissented on several points. Before we get to Timmer's dissent, let's review what (US) Supreme Court Justice Ruth Bader Ginsburg has said about dissents.
“As RBG has said, ‘Dissents speak to a future age,’ and, ‘Justices continue to think and can change. I am ever hopeful that if the court has a blind spot today, its eyes will be open tomorrow,’” says Shana Knizhnik, attorney and co-author of "Notorious R.B.G.: The Life and Times of Ruth Bader Ginsburg." “Although RBG would prefer to be in the majority, the ability to speak out in disagreement in the form of a dissenting opinion is incredibly important for the losing side, future litigants and judges, and most of all, to sound the alarm to the public,” she explains.
If you want to be heard, dissent like RBG
Learning to dissent, or express an opinion that goes against the grain, can benefit us all when we’re called upon to stand up for ourselves.It seems that the men on the Arizona Supreme Court are caught in a time lock.
¶103 Life as we know it has been upended by the COVID-19 pandemic sweeping the world. On the heels of public health emergencies declared nationally and globally, Governor Douglas A. Ducey declared a public health emergency in Arizona on March 11, 2020 “due to the necessity to prepare for, prevent, respond to, and mitigate” the “community spread” of COVID-19. See Exec. Orders Nos. 2020-07, 2020-09.
¶106 Although Arizona is not required to grant people the right to enact laws through the initiative process, having done so, it does not have free rein in regulating that right. See Meyer v. Grant, 486 U.S. 414, 424–25 (1988) (rejecting Colorado’s assertion that because the initiative is a state-created right, the state is free to impose any limitation for its exercise). As pertinent here, ballot-access restrictions for initiative petitions, as for candidates, cannot unduly or unfairly burden the fundamental “right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.” Anderson v. Celebrezze, 460 U.S. 780, 787–88 (1983) (quoting Williams v. Rhodes, 393 U.S. 23, 30 (1968)); see also Meyer, 486 U.S. at 421–22 (concluding that the circulation of an initiative petition “involves the type of interactive communication concerning political change that is appropriately described as ‘core political speech’”); Idaho Coal. United for Bears v. Cenarrusa, 342 F.3d 1073, 1077 (9th Cir. 2003) (observing that petitions to place initiative measures on the ballot implicate the fundamental right to vote); Lemons v. Bradbury, 538 F.3d 1098, 1102 (9th Cir. 2008) (to same effect). Indisputably, the rights to engage in political discourse and to vote “rank among our most precious freedoms.” Anderson, 460 U.S. at 787 (quoting Williams, 393 U.S. at 30)
¶107 To decide whether a ballot-access restriction improperly burdens First Amendment rights, I agree with the majority that we apply the framework set out in Anderson, as refined by Burdick v. Takushi, 504 U.S. 428, 434 (1992). We initially examine the “character and magnitude of the asserted injury” on individual constitutional rights. Anderson, 460 U.S. at 789. If the burden is “severe,” we apply strict scrutiny, upholding the restriction only if it is “narrowly drawn to advance a state interest of compelling importance.” See Burdick, 504 U.S. at 434 (quoting Norman v. Reed, 502 U.S. 279, 289 (1992)). If the burden is reasonable and nondiscriminatory, we will uphold the restriction if justified by a state’s important regulatory interests. See Anderson, 460 U.S. at 788; Burdick, 504 U.S. at 434. [In this case, apparently there is NO important regulatory interest justifying the underlying decision]
¶108 Importantly, in applying the Anderson/Burdick framework, we consider the electorate’s rights as well as Petitioners’ rights. See Anderson, 460 U.S. at 786 (recognizing that “the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters” (quoting Bullock v. Carter, 405 U.S. 134, 143 (1972))); Burdick, 504 U.S. at 433–34 (focusing the inquiry on whether a challenged law unduly affects “the individual’s right to vote and his right to associate with others for political ends” (quoting Anderson, 460 U.S. at 788)). The majority loses sight of the electorate’s rights, which are never touched on.
¶109 Unlike my colleagues, I conclude that the one-two-three punch delivered by the wet-signature requirement in tandem with the Stay-at-Home order and the pandemic severely burdened individuals’ voting and associational rights. See Williams, 393 U.S. at 34 (examining “the totality of the Ohio restrictive laws taken as a whole” to decide whether the burden imposed violates equal protection); Goldstein v. Sec’y of Commonwealth, 142 N.E.3d 560, 570 (Mass. 2020) (recognizing that “statutory requirements that were once considered constitutionally permissible may later be found to interfere significantly with a fundamental right as societal conditions and technology change”). At a time when Arizonans were acclimating to wearing masks, staying at least six feet away from others, and all but dousing themselves in hand sanitizer, only the hardiest permitted a stranger to approach to discuss an initiative petition or obtain a signature. This was so even though the Stay-at-Home order explicitly permitted Arizonans to “engage in constitutionally protected activities” with “appropriate physical distancing.” See Exec. Order No. 2020-18. Declarations submitted by Petitioners and amici evidence this commonsense conclusion:
Save Our Schools Arizona, which relied solely on unpaid volunteers to circulate petitions, saw signature-gathering “slowed to a near halt” because circulators could no longer collect signatures at large-scale events and “where there [were] still potential signers out and about, they [were] increasingly hesitant to interact despite the use of mitigation measures by petition circulators.” [there are more examples/evidence]
Eighty-two-year-old Philip J. Adelman, a retired U.S. Air Force lieutenant colonel, signed many initiative petitions throughout the years and “had every intention of continuing to do so during this year’s election cycle.” But the senior living community where he and his wife reside banned visitors from the community, including petition circulators, except in emergency or end-of-life situations. Residents were also prohibited from leaving the community, except to receive medical care. He lamented that “without the opportunity to sign petitions via an online mechanism,” he and others in senior living communities in Arizona “[would] be deprived of this important right to participate directly in our democracy.”
Bridget Olson, a sixty-five-year-old retired teacher, volunteered to circulate petitions for the Save Our Schools Act initiative. She stopped doing so in mid-March because “older” Arizonans are at risk of becoming ill with COVID-19 and she did not wish to potentially expose petition signers to the virus. Before the pandemic, she had circulated petitions in retirement communities and planned to circulate petitions at a group home and rehabilitation center but had to cancel when informed that “[n]o visitors are allowed,” in light of the pandemic.
¶110 I have no trouble concluding that the wet-signature requirement and Governor Ducey’s Stay-at-Home order combined during the pandemic to severely burden individuals’ First and Fourteenth Amendment rights to vote and to associate to engage in political discourse. See Goldstein, 142 N.E.3d at 571 (“No fair-minded person can dispute that the fundamental right to run for elective office has been unconstitutionally burdened or interfered with by the need to obtain the required ‘wet’ signatures in the midst of this pandemic.”). The only way to qualify an initiative for the ballot is to obtain a sufficient number of wet signatures gathered in the physical presence of circulators—an improbable feat during the pandemic. Cf. Burdick, 504 U.S. at 441 (looking at Hawaii’s entire electoral system in deciding whether, despite the ban on write-in voting, candidates were afforded “constitutionally sufficient ballot access”). Obviously, without initiatives on the ballot, Arizonans could not fully exercise their rights to associate and debate the merits of those proposals or vote on them. See Meyer, 486 U.S. at 421–23 (concluding that restrictions on the initiative process can severely burden “core political speech” by making it less likely that an initiative will qualify for the ballot, thus limiting proponents’ ability “to make the matter the focus of statewide discussion”); Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979) (“By limiting the choices available to voters, the State impairs the voters’ ability to express their political preferences.”). Strict scrutiny review is warranted. See Burdick, 504 U.S. at 434.
¶111 The majority reaches the opposite conclusion. It reasons that Petitioners failed to demonstrate a severe burden on voting and associational rights because they were not reasonably diligent in collecting signatures, despite uncontested evidence that all four Petitioners were ontrack before the pandemic to collect a sufficient number of signatures by the July 2 filing deadline. My colleagues essentially fault Petitioners for not anticipating the pandemic and gathering signatures earlier, which may have lessened the burden of the wet-signature requirement as applied here. See supra ¶¶ 46–50. I disagree for two reasons.
¶112 First, the cases the majority relies on considered whether ballot-access restrictions alone, applied during non-emergency times, imposed a severe burden and appropriately asked whether a reasonably diligent candidate or initiative proponent could be expected to gain access to the ballot in light of these restrictions. See, e.g., Storer v. Brown, 415 U.S. 724, 742 (1974); Angle v. Miller, 673 F.3d 1122, 1133 (9th Cir. 2012). If Petitioners had challenged the wet-signature requirement in normal times, I would agree that a reasonably diligent initiative proponent could be expected to gather a sufficient number of signatures to qualify for the ballot. But Petitioners challenge the wet-signature requirement as applied in combination with the Stay-at-Home order and during a pandemic. Thus, the appropriate inquiry, which the majority disdains, is whether a reasonably diligent initiative proponent could be expected to gain access to the ballot after the Stay-at-Home order and the pandemic metaphorically yanked the rug from under the proponent’s feet with several months remaining before the petition-filing deadline. See Storer, 415 U.S. at 742 (acknowledging the impact of societal conditions on the constitutionality of ballot-access restrictions by considering whether “in the context of California politics” a reasonably diligent independent candidate could be expected to satisfy restrictions and access the ballot).
¶113 Second, resting the severe-burden inquiry on whether Petitioners were reasonably diligent in gathering signatures before the Stay-at-Home order effectively required Petitioners to gather signatures well in advance of the election. But requiring early signature gathering when the election is far in the future itself burdens those efforts. As the Anderson Court observed in striking Ohio’s early-filing requirement for independent candidates, when an election is remote in time, “the obstacles facing an independent candidate’s organizing efforts are compounded” because “[v]olunteers are more difficult to recruit and retain, media publicity and campaign contributions are more difficult to secure, and voters are less interested in the campaign.” 460 U.S. at 792. The same reasoning holds true for initiative campaigns, which may logically choose to focus signature-gathering efforts in the election year to rally volunteers and create a sustained “buzz” among voters in the run-up to election day. Indeed, this may explain why proponents of the only two initiatives on the 2018 ballot filed their applications with the Secretary of State, respectively, on February 20 and March 9 that year before starting to gather signatures. See Voter Registration & Historical Election Data, Ariz. Sec’y of State, https://azsos.gov/elections/voter-registration-historical-election-data (last visited Aug. 27, 2020). And of the five citizen initiatives on the ballot from 2010 through 2016, proponents for three of the five filed their applications, respectively, on March 9 (twice) and March 30 in the election years before gathering signatures. Id.There's more to Timmer's dissent, but I hope what I've provided here gives you adequate basis to realize that the majority decision was wrong, and obviously too short-sighted. You can read the whole opinion and all of the dissent at the link, if you are thus inclined.
What can and should be done to change this situation?
First, the fundamental consideration we must face is that The Obstacle is the Way. Obstacles to success can and should be viewed like flowing water that has been temporarily held up by a natural or animal or human-made dam. The water will continue to gather behind the dam until the dam can no longer hold it back.
Then we must envision a course of action and take that course.
This necessary nonviolent struggle may begin by someone organizing another initiative drive to amend the state constitution to allow E-qual for all initiatives. After all, disruptive technological innovation has already presented that makes it feasible, safe and secure.
Convincing the state legislature to submit a constitutional amendment to the voters may be feasible in the near future.
Recent citizen action in California merged those two courses together to motivative that state's legislature to enact a real internet privacy act. Since you're reading this essay, it's likely you've either heard of it or been asked whether you are a California citizen when visiting various websites.
In a statement to WIRED following landslide votes [in 2018] in both state houses, Hertzberg said, "Today the California Legislature made history by passing the most comprehensive privacy law in the country. We in California are continuing to push the envelope on technology and privacy issues by enacting robust consumer protections---without stifling innovation.”
The new legislation gives Californians the right to see what information businesses collect on them, request that it be deleted, get access to information on the types of companies their data has been sold to, and direct businesses to stop selling that information to third parties. ...
The ballot initiative would have prevented businesses from denying service to consumers if they opt out of having their data tracked and stored. The law contains similar language, though it creates what Hertzberg calls the "Spotify exception," which allows companies to offer different services or rates to consumers based on the information they provide—for instance, a free product based on advertising. But, the bill states, the difference must be “reasonably related to the value provided to the consumer by the consumer’s data."
Had the bill failed, it would have been up to voters to decide whether to support the proposal on the ballot in November. Prior to Thursday's vote, Alastair Mactaggart, the guy behind the ballot initiative sounded optimistic about his options. "We’re heartened by the momentum behind these endeavors, and the protections that both efforts seek to provide for consumers and our children," he said in a statement.
But ballot initiatives are far more difficult to change once they're passed, [which is how/why the voters had/have leverage with the legislature. Similar leverage is prescribed in the Arizona constitution] because amendments require yet another two-thirds majority vote on the ballot. That may be one reason why opponents within the tech industry reluctantly supported the passage of the bill, says Soltani: It’s easier to change.
“The senate can vote on amendments and the special interests can lobby on these amendments,” he says. “The reason why we haven’t been able to do anything in privacy for 20 years is because the special interests are so powerful.”
The tech industry did throw the full weight of its lobbying might---and money---at the fight against the ballot initiative, spending millions of dollars to oppose it through a group called the Committee to Protect California Jobs. They argued that the measure would open them up to liability that would hurt their businesses and their ability to hire. Hertzberg envisioned the bill as a compromise, in part, because it leaves the task of enforcing the law to the attorney general and takes the right to private action by citizens off the table, except in the case of data breaches.The Obstacle is the Way. Let's get started together on this journey.
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