Originally Published: August 25, 2017 5:59 a.m.
PHOENIX — Supporters of universal vouchers of tax dollars for private and parochial education have opened a second legal front in their bid to give voters the last word on the issue.
A second lawsuit filed in Maricopa County Superior Court contends there are irregularities with the petitions turned in to refer the question to the 2018 ballot. Attorney Kory Langhofer cites nearly four dozen situations where he said they do not comply with the law.
If a judge agrees, that would leave the referendum drive without sufficient signatures.
Voucher supporters raised some of the same issues with the Secretary of State’s Office in a bid to have his office void the petitions. Elections Director Eric Spencer did not agree with their legal arguments, giving the petitions preliminary approval.
But Langhofer pointed out that Arizona law requires that referendum petitions be in “strict compliance” with all elections laws. And he wants the judge to order Secretary of State Michele Reagan to “reject all sheets and signatures in the referendum petition that do not strictly comply with all governing provisions of Arizona law.”
The referendum is aimed at undermining a measure approved earlier this year by the Republican-backed legislature and signed by Gov. Doug Ducey to allow more Arizona children to get public dollars for a private education.
The original program approved in 2011 was designed to provide what are formally called Education Scholarship Accounts to students with special needs that could not be met in public schools. But voucher supporters have slowly widened the door to where it now includes foster children, children from reservations and children who attend schools rated D and F.
SB1431 removes all those restrictions, saying any student could get a voucher.
To get the votes, however, supporters had to agree to a cap of 30,000 vouchers by 2023 out of more than 1.1 million children attending public schools. But that cap can be removed by a future legislature.
On Thursday, Ducey defended the use of tax dollars for private and parochial education even amid complaints Arizona spends less than virtually every other state on its public schools.
“I am a supporter of public education,’’ he said. “Public education means educating our public.”
Nor is he dissuaded by the fact that public funds can go toward providing a religious education.
“We’re allowing parents access to their tax dollars in the service of their child’s education,” Ducey said.
Opponents of an expanded voucher program argue that it diverts dollars that would otherwise go to underfunded public schools. But Ducey said vouchers don’t by themselves take money from public schools, though if more children use vouchers to go to private schools, state aid to public schools is reduced.
Having lost the legislative battle, foes of expansion are taking advantage of a provision in the Arizona Constitution that gives voters the last word if they are able to gather the signatures equal to 5 percent of the people who voted in the last gubernatorial election. That’s 75,321, a figure the Secretary of State’s Office said last week a preliminary review shows organizers appear to have.
Langhofer and fellow attorneys hope to chip away at that.
For example, one contention is that signatures do not count unless they have both the signer’s street address as well as zip code. There also are claims that people who were paid circulators did not first register with the state as required by law, some names of circulators did not match their signatures and even that the date a notary put on a circulator’s affidavit is incorrect.
And the lawsuit says there are situations where signatures are illegible or where the person’s printed name, which is also required, looks just like the person’s signature.
Spencer already found some of those arguments lacking.
For example, he disputes that Arizona law requires both an address and a zip code. And Spencer said there are people whose signatures just happen to look like their printed names.
But Spencer said some of the arguments made by vouchers supporters about the petitions were beyond the scope of what he could decide.
One appears to be largely a technicality.
Arizona law requires that referendum petitions referendum tell would-be signers not just the bill number of the measure at issue but which legislative session that bill was approved.
This measure was approved in the “First Legislative Session of the 53rd Legislature,” with each “legislature” running two years. But Langhofer pointed out the petitions said the measure was approved at the 53rd session of the Legislature, which legally never existed.
Dawn Penich-Thacker, spokeswoman for the Save Our Schools campaign, said no one was misled.
“What this comes down to is, did Arizona voters know what they were signing?” she said. “And absolutely, they did.”
Langhofer, however, said that under the “strict compliance” for referenda, things can be disqualified from the ballot “even in the absence of confusion.” And he said that standard is appropriate.
He said Arizona is not a direct democracy, where voters decide everything, but rather a “representative democracy” where elected officials are charged with setting policy.
The Arizona Constitution does allow voters to place on “hold” items approved by elected lawmakers until it can be ratified or rejected at the ballot. But he said that there need to be standards allowing people to delay — and potentially thwart — the will of representatives of the majority.
“It makes them do it right,” Langhofer said. “They don’t just get to press a button or yell at their TV and get an issue onto the statewide ballot.”
Voucher supporters already have another lawsuit pending, this one filed right after opponents of expansion submitted more than 110,000 signatures. That one raises another series of legal claims about the validity of the petition drive.
And if both of those legal efforts fail, a third lawsuit is possible, this one to strike the names of individual signers if county recorders determine from a random sample that there are at least 75,321 valid signatures on those petitions.