The Saratogian (Saratoga, NY)

Arizona voters

- WILL

This year’s election that most implicates fundamenta­l issues of American governance will not fill a legislativ­e or executive office. And its importance is not primarily that it will either repudiate or reward dishonesty and cynicism in the service of factional grasping. Rather, Arizona’s judge-retention election will decide whether judges should be vulnerable to punishment if their punctiliou­s applicatio­n of a law annoys a self-aggrandizi­ng interest group.

Two years after justices are appointed by the governor to Arizona’s Supreme Court, they must be voted on in retention elections, and subsequent­ly in such elections every six years. This misbegotte­n procedure is an incentive for injudiciou­sness — for judges to consider public opinion while making jurisprude­ntial distinctio­ns and decisions. To their credit, Arizonans have never exercised their power to remove a justice of the state’s Supreme Court. This year, however, voters are being exhorted by the Arizona Education Associatio­n, the teachers union, and national allies to reject the two justices standing for retention.

The justices’ transgress­ion is that they stopped the union from benefiting from misleading voters with a meretricio­us wording of a ballot initiative. The wording might have been charitably ascribed to carelessne­ss rather than guile, but it was suspicious­ly helpful to the union’s objective.

Last spring, Arizona teachers went on strike, winning from the governor a 20 percent raise by 2020. Then, in an attempted end-run around the legislatur­e, the AEA supported Propositio­n 207, to get voters to directly increase taxes for education spending. Targeting affluent Arizonans, the measure, if passed, would have raised $690 million annually, with 60 percent dedicated to teachers’ salaries. But the ballot language describing 207 was misleading about one matter and false about another.

The initiative would have almost doubled Arizona’s top income-tax rate from 4.54 percent to 8 percent on incomes above $250,000 and 9 percent on those above $500,000. But the ballot descriptio­n falsely said this top rate would be raised “by 4.46 percent,” not the actual 4.46 percentage points, a substantia­l difference.

Also, since 2015 Arizona has had indexation of its tax brackets, so, for example, the bracket that used to cover incomes between $50,001 and $150,000 now applies to somewhat higher incomes. But the way Propositio­n 207 was written would have repealed indexation and the adjustment­s it had made since 2015, effectivel­y raising taxes on many people.

For these reasons, the state’s Supreme Court struck 207 from this November’s ballot. As of this writing, the court’s opinion has not been published, but a leak indicates that the court ruled 5-2, with the two justices, Clint Bolick and John Pelander, who are subject to a retention vote, in the majority. Both judges have stellar ratings from Arizona’s Commission on Judicial Performanc­e Review. But the AEA, its carelessne­ss and/or mendacity stymied, wants revenge and to send a message: Do not render decisions that anger a special interest with especially deep pockets.

Now, judicial elections of all sorts are congruent with today’s populist temper — “Vox populi, vox Dei” and all that. They are, however, always and everywhere, inherently inimical to judicial independen­ce from political pressures. They are permanent and perverse incentives for judges weighing jurisprude­ntial arguments to, as it were, glance over their shoulders at glowering and clamorous factions, and to trim their juridical sails to accommodat­e prevailing political winds.

Arizonans who are voting — early voting began Oct. 10 — in the retention election should contemplat­e the recent spectacle involving the U.S. Supreme Court. The court has been sucked into the vortex of today’s bilious politics by a confirmati­on process that is not the court’s fault. But two days after Brett Kavanaugh was sworn in as a justice elsewhere, all nine justices made matters worse by allowing themselves to be props at a White House event — an end-zone dance masqueradi­ng as a civic liturgy — in which the president, with his knack for vulgarity and his eye on next month’s elections, issued a faux apology to Kavanaugh on behalf of no one in particular, but for the obvious purpose of making his base salivate for partisan score-settling. Might all the justices finally recognize how inappropri­ate it is for them to attend the annual political pep rally that presidents of both parties have made of the State of the Union address?

Arizonans can immunize their state’s judiciary from a downward stumble into politics. They can reject the attempt to punish two fine judges, and to intimidate others, for patently political purposes.

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