Invest in Ed fails to adjust for future

Proponents of the Invest in Ed initiative have made an odd request of a judge: Rule that the measure doesn’t mean what we wrote. Instead, rule that it means what we intended — but did not write.

Moreover, enjoin the Legislative Council from informing voters in the publicity pamphlet what the effect would be of what we actually wrote.

Since 2015, individual income-tax brackets in Arizona have been indexed for inflation, based on the belief that people shouldn’t pay more if their purchasing power hasn’t actually gone up.

Invest in Ed seeks to dramatically increase the income-tax rate on those making more than $250,000 a year, with the proceeds earmarked for K-12 education.

But the way proponents went about doing that eliminates the annual indexing adjustment to the brackets, if read literally. According to the Legislature’s budgeteers, that would result in a tax hike of nearly $50 million next year, growing over time. And paid mainly by people who aren’t rich.

There’s really no legal argument that the initiative doesn’t reverse at least four years of indexing.

The initiative sets forth new tax brackets and rates and flatly states that they are to be used “for taxable years beginning from and after December 31, 2018.” This is new law, and thus supersedes anything passed previously.

The drafters of the initiative, however, used the tax brackets as they existed before indexing began, effectively reinstating them.

For example, the initiative states that the 4.24 percent rate should be applied to income beginning at $50,001. With indexing, that had crept up to $54,311.

While there can be no legal argument that the initiative doesn’t establish the tax brackets as specified for 2019, thus wiping out four years of indexing, an argument can be mounted that indexing would resume from that point. Not, however, an argument that should prevail.

When indexing was passed by the Legislature, Democrats opposed it. The liberal Democrats who concocted this new initiative, however, might have intended to preserve it. The Invest in Ed initiative says that the new brackets established are subject to the section of statute that provides for an annual inflation adjustment. But there is a problem.

The indexing statute authorizes adjustments

in the brackets set forth by paragraph 5 of this section of law. Invest in Ed, however, put its tax brackets in a new paragraph 6. Paragraph 5, the old brackets and rates, would be rendered inoperable. And there would be no authorization to adjust the brackets prescribed by Invest in Ed’s new paragraph 6.

A judge should give great weight to legislative intent, but not if it requires rewriting the law. Which is what a judge would have to do to rescue the proponents of Invest in Ed from their inept draftsmanship.

The judiciary has not covered itself in glory when attempting to play editor of these ballot-pamphlet summaries.

By law, the Legislative Council is supposed to adopt an “impartial analysis” of ballot measures, which is to be printed in the publicity pamphlet that is distributed to all voters.

The staff of the Legislative Council are a group of lawyers who draft bills and perform other legal tasks for all members of the Legislature. They are immaculately nonpartisan, and they are the ones who spotted the indexing faux pas.

The Council itself, however, is a committee of legislators, and they have the final say on these pamphlet analyses. And there is a suspicion, not unwarranted, that they occasionally try to tilt the playing field.

Judges have used the “impartial” requirement to butt in and edit their work. But have established no standards or consistency in doing so.

This election cycle, a judge ordered a change in the Legislative Council’s analysis of an amendment to the Clean Elections Act because it did not give enough detail about the status quo. In 2000, however, the state Supreme Court struck down an analysis of the proposed growth-management initiative because it contained too much detail about the status quo.

The most shameful intervention also occurred in 2000. An initiative, which passed, significantly increased state Medicaid coverage for childless adults. Proponents claimed tobacco settlement money and federal funds would cover the entire cost.

The state Supreme Court forbade the publication of a warning that this might not be the case and the general fund would have to make up any shortfall. As it turns out, that’s exactly what happened, to the tune of hundreds of millions of dollars a year.

All this haggling and litigating about “impartiality” is unproductive. Eliminate the Legislative Council analysis. Put initiatives on the ballot and let proponents and opponents duke it out at the ballot box.