Originally Published: June 15, 2017 5:58 a.m.
PHOENIX — Attorneys for the state are trying to block challengers to newly enacted initiative restrictions from telling their story to a judge.
The lawyers contend that the claims of those who contend the new law will harm future petition efforts are “fanciful and not genuine.” And attorney David Cantelme, who is leading the defense on behalf of Republican legislative leaders who pushed through the change, said that makes anything the challengers have to say in court legally irrelevant —and legally inadmissible.
But Cantelme is not the only one seeking to limit what Maricopa County Superior Court Judge Sherry Stephens will consider at a hearing next month.
Attorney Roopali Desai, representing the challengers, has filed her own motions to block efforts by the state and Republican legislative leaders to have the judge hear from another lawyer and a campaign consultant.
Both want to tell Stephens they believe the new law won’t make it harder for initiative organizers to qualify for the ballot. And that, Cantelme is arguing to Stephens, means there’s no basis for the challenge and she should dismiss the case.
The legal fight is over what standard a judge must use in determining whether an initiative petition proposing a new law or constitutional amendment can be placed on the ballot.
Current law requires only “substantial compliance” with election statutes. Courts have repeatedly interpreted that to mean that measures can go to voters even if there are inadvertent errors by organizers or circulators, or mistakes those that do not affect the ability of voters to determine what is at issue.
That has led to courts giving the go-ahead for voters to consider some things not favored by the GOP legislative majority, including a proposed one-cent hike in sales taxes to fund education and transportation. That 2012 measure failed anyway.
Earlier this year lawmakers approved HB 2244 requiring judges to void initiatives not in “strict compliance” with all election laws. That could mean disqualification of petition drives based on technical errors.
In the lawsuit, Desai contends the legislature violated the constitutional rights of voters to propose their own laws by erecting the new hurdle. And she wants Stephens to block the law from taking effect as scheduled on Aug. 9.
But Cantelme hopes to quash the lawsuit even before Stephens gets to hear that constitutional argument. He argues that only those who suffer a “discrete and palpable injury” from a law are entitled to challenge it.
In this case, Cantelme said, the plaintiffs have suffered no injury because they are not currently circulating initiative petitions and are only speculating about how they might be harmed in the future. That, he said, means “they lack personal knowledge to testify to such fanciful injuries,” making anything they say “hearsay or speculation.”
Desai said Cantelme is ignoring a key fact: The plaintiffs are not just people off the street.
They include Matt Madonna, former president of the regional division of American Cancer Society, which got voters to ban smoking in public places; Sandy Bahr of the Sierra Club which helped convinced voters to ban leghold traps on public lands; and the Animal Defense League which got voters to outlaw “gestation crates” for calves and pigs.
“These folks have run initiatives, lots of initiatives in fact,” she said, crafting language, forming legally legally required committees and hiring paid circulators.
“They know what goes into that,” Desai continued. “They know what kinds of risks are going to increase as the result of a stricter standard of review.”
And there’s something else.
“It affects the way we raise money,” Desai explained, with initiative organizers having to explain to would-be donors the risk that a petition drive could get the necessary number of signatures -- 150,642 for a statutory change and 225,963 for a constitutional amendment -- only to be barred from the ballot because of a technical error.
Other plaintiffs include those weighing future initiatives like the Friends of ASBA, a group aligned with the Arizona School Boards Association that can get involved in politics. According to the challenge, that group is “seriously contemplating sponsoring a statewide initiative related to education that would appear on the ballot in November 2018.”
Cantelme, for his part, contends none of that matters.
He said if initiative organizers follow the law and gather a “cushion” of 30 percent more signatures than they need they should have no problem getting their issue to voters. And to prove his point, he wants testimony from attorney Kory Langhofer, who has been involved with Republican political causes and litigation, to tell the judge how he believes believe the change won’t affect the ability of groups to get their measures on the ballot.
Desai, however, said what Langhofer has to say has no bearing on the belief of the challengers, based on their own experience, of how the new law will affect them.
“He doesn’t represent any of them,” she said.
“He hasn’t advised any of them,” Desai continued. “These are all red herrings and distractions.”
She had a similar assessment of Gibson McKay, a campaign consultant who has been aligned with GOP causes and worked on some initiatives, saying he should not be allowed to testify because he’s not an expert on the law.