Reject ballot measure challenges
In 2018, the Arizona Supreme Court tossed the Invest in Ed initiative off the ballot because of flaws in its statutorily required 100-word summary.
Perhaps inevitably, all the initiatives that, at first count, have sufficient signatures to qualify for the ballot this year now face legal challenges to their 100word summaries.
These challenges will ultimately make their own way to the state Supreme Court. The justices should reject them. And, to avoid a continuing avalanche of such challenges in future elections, they should clarify what was peculiarly egregious about the 2018 Invest in Ed initiative that warranted an exception to the generally broad discretion initiative proponents should have in summarizing their measures.
I say that not as a friend of this year’s challenged initiatives. Assuming that the woke thought police don’t get me canceled before the November election, I will be writing against most, if not all, of them.
But justices should stay out of the ballot measure process to the maximum extent possible. The separation of powers, respect for the court, and the integrity of the initiative and referendum process require it.
State statutes dictate the form for initiative petitions. The first requirement is for “a description of no more than one hundred words of the principal provisions of the proposed measure.”
This description is then to be followed by this warning to prospective signers: “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 ... . You have the right to read or examine the title and text before signing.”
Which brings us to the 2018 Invest in Ed initiative. Among other things, the summary description stated that it would be funded by “raising the income tax rate by 3.46% on individual incomes over a quarter million dollars (or household incomes over half a million dollars), and by 4.46% on individual incomes over half a million dollars (or household incomes over a million dollars) ... . ”
That sounds like a modest only on the rich.
However, the actual tax increase was 3.46 and 4.46 percentage Rather than an increase in the rate of less than 5%, the maximum tax rate on the affluent was going to be nearly doubled. The existing maximum rate is around 4.5%.
Additionally, the initiative unintentionally repealed the income tax bracket indexing provision of state law that applies to everyone. Basically, the tax
tax
increase brackets are adjusted each year for inflation. Repealing this provision meant an income tax increase for everyone.
So, rather than a modest tax increase on only the rich, the proposition would have increased income taxes on everyone and immodestly on the rich.
Rather than the statutorily required 100-word summary just being incomplete or tendentious, it was fundamentally false and misleading. A court majority found that this itself violated the integrity of the initiative process. People who would sign a petition increasing taxes modestly on only the rich might not sign one that increased taxes on everyone and immodestly on the rich.
Compare that to the summary description in this year’s Invest in Ed 2. This year’s version says that it is funded 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.”
The legal challenge maintains that this is flawed, and should result in the measure being tossed from the ballot, because, among other reasons, it uses the word “surcharge” rather than “tax” and doesn’t state what the resulting maximum tax rate would be, which would be one of the highest in the country.
However, unlike the 2018 summary description, this year’s isn’t fundamentally false and misleading. “Surcharge” connotes an additional levy. Unlike the 2018 version, the amount is accurately conveyed, if expressed in a way to make it sound more modest than it really is. And this year’s version doesn’t inadvertently repeal bracket indexing, so the additional levy is imposed on only the affluent.
The rest of the challenges similarly fail to make the case that the descriptions are fundamentally false and misleading. Instead, there are mostly arguments – some substantive, some pettifogging – about what constitutes the “principal provisions” of the measures.
The required warning, however, makes it clear that the summary is the proponents putting their best foot forward and is not unbiased or necessarily complete.
In the past, previous justices have been excessively involved in the ballot measure process. It did not redound to their credit. Infamously, they struck from the publicity pamphlet a warning from legislative budget staff that a Medicaid expansion measure might end up costing the state’s general fund big bucks, which it did.
This court should take advantage of the off-ramp these challenges offer by clarifying that proponents have a relatively free hand in their 100-word summaries, up to the point of being fundamentally false and misleading.