Invest in Ed ruling threat to the right of initiative

A Maricopa County judge didn’t just throw a tax increase to better fund Arizona’s schools off the ballot.

He virtually ensured that voters will never will be able to decide whether Invest in Ed should become law. Or much of anything else.

The Arizona Legislature, in recent years, has dealt a series of systematic body blows to our constitutional right to make laws at the ballot box. But Maricopa County Superior Court Judge Christopher Coury?

In one swift judicial upper cut, he may have just delivered a knock-out punch.

Coury on Friday ordered the Invest in Education Act off the ballot, saying the 100-word summary of the proposed tax on Arizona’s wealthiest residents was “misleading by its omission of principal provisions.”

“IIE ... was required to be transparent when obtaining signatures,” he wrote. “Instead of identifying all principal provisions in the Initiative’s description, Defendant Invest in Ed circulated an opaque ‘trojan horse’ of a 100-word description, concealing principal provisions of the initiative.”

Coury says the group should have included in its summary:

A detailed breakdown of how the money was to be distributed, including the fact that only 50% of the new income would go to “teachers, classroom support personnel and student support services personnel.”

A more detailed explanation of the marginal 3.46% and 4.46% surcharge on incomes above $250,000 for an individual or $500,000 for a married couple filing jointly, including the fact that those impacted by the tax would actually see their taxes on the affected income rise by 77.7%.

The fact that the tax increase would apply to income generated by sole proprietorships, limited liability companies, S-corporations and partnerships — small businesses that do not pay business taxes but instead “pass through” to become the taxable income of the individual business owner.

The fact that the Arizona Legislature could not reduce other funding to public education to offset the amount raised by the surcharge.

The impact of the proposal on school districts’ spending limits.

In all, Coury spent 101 words telling us all the additional things Invest in Ed should have added to its 100-word summary.

That’s not a summary. That’s an entire campaign — one that should have been vigorously waged between now and Nov. 3.

Coury argues that many of the nearly 377,456 Arizona voters might not have signed petitions had they known any or all of the above.

It’s difficult to imagine that nearly 140,000 voters – those over the

237,645 needed to make the ballot – would have sworn off signing a proposal to raise taxes on the rich in order to better fund Arizona’s woefully underfunded schools.

In any case, they certainly knew there was more to the proposal if they read the 100-word summary. Directly underneath the summary came this disclaimer, required by state law:

“Notice: This is only a description of the proposed measure prepared by the sponsor of the measure. It may not include every provision contained in the measure. Before signing, make sure the title and text of the measure are attached. You have the right to read or examine the title and text before signing.”

Coury, by the way, also objected to use of the term “surcharge,” saying it created “a substantial likelihood of confusion for a reasonable voter.”

Apparently, reasonable voters don’t see a surcharge as a tax?

I don’t know where I would have come down on the Invest in Ed proposal. I opposed the 2018 version – which also was tossed off the ballot – on the general principle that it’s not right to gang up on rich people and soak them with a tax increase just because we can.

A pandemic that has left small business owners hanging on by their fingertips doesn’t make it more likely that I would have endorsed this plan (though the fact that the business community had two ensuring years to come up with a better plan and didn’t also likely would have played into my thinking.)

But snatching away our constitutional right to make the call?

Based on Coury’s accounting of what needed to be in the summary, it’s difficult to envision a proposal that actually could make the ballot.

Here is the summary circulated with the Invest in Ed petitions:

“The Invest in Education Act provides additional funding for public education by establishing a 3.5% surcharge on taxable income above $250,000 annually for single persons or married persons filing separately, and on taxable income above $500,000 annually for married persons filing jointly or head of household filers; dedicates additional revenue to (a) hire and increase salaries for teachers, classroom support personnel and student support services personnel, (b) mentoring and retention programs for new classroom teachers, (c) career training and post-secondary preparation programs, (d) Arizona Teachers Academy; amends the Arizona Teachers Academy statute; requires annual accounting of additional revenue.”

It’s a pity Coury didn’t rewrite it, to demonstrate how he would have packed another 101 words worth of material into what must be, by law, “a description of no more than one hundred words of the principal provisions of the proposed measure or constitutional amendment.”

Probably because it can’t be done. Invest in Ed already has announced that it will appeal Coury’s ruling, as it should.

When he threw Invest in Ed off the ballot, Coury didn’t just throw away the wishes of nearly 400,000 Arizona voters.

He may have just thrown away our right to make our own laws.