Arizonans for Second Chances, Rehab., & Pub. Safety v. Hobbs

• Citation: 249 Ariz. 396,471 P.3d 607
• Decision Date: 04 September 2020
• Docket Number: No. CV-20-0098-SA,CV-20-0098-SA
• Parties: ARIZONANS FOR SECOND CHANCES, REHABILITATION, AND PUBLIC SAFETY (Sponsored by ASJ Action Fund); Smart and Safe Arizona; Invest In Education (Sponsored by AEA and Stand for Children); and Save Our Schools Arizona, Petitioners, v. Katie HOBBS, in her official capacity as Arizona Secretary of State, Respondent.
• Court: Arizona Supreme Court

249 Ariz. 396

471 P.3d 607

ARIZONANS FOR SECOND CHANCES, REHABILITATION, AND PUBLIC SAFETY (Sponsored by ASJ Action Fund); Smart and Safe Arizona; Invest In Education (Sponsored by AEA and Stand for Children); and Save Our Schools Arizona, Petitioners,

v.Katie HOBBS, in her official capacity as Arizona Secretary of State, Respondent.

No. CV-20-0098-SA

Supreme Court of Arizona.

Filed September 4, 2020

Roopali H. Desai, D. Andrew Gaona, Kristen Yost, Coppersmith Brockelman PLC, Phoenix, Attorneys for Arizonans for Second Chances, Rehabilitation, and Public Safety, Smart and Safe Arizona, Invest in Education, and Save our Schools Arizona

Roy Herrera, Daniel A. Arellano, Ballard Spahr LLP, Phoenix, Attorneys for Katie Hobbs in her official capacity as Arizona Secretary of State

Mark Brnovich, Attorney General, Joseph A. Kanefield, Chief Deputy & Chief of Staff, Brunn (Beau) W. Roysden, III, Division Chief, Drew C. Ensign, Deputy Solicitor General, Jennifer J. Wright, Anthony R. Napolitano, Robert J. Maker, Assistant Attorneys General, Phoenix, Attorneys for Intervenor Mark Brnovich

David J. Cantelme, D. Aaron Brown, Cantelme & Brown, P.L.C., Tempe, Attorneys for Intervenors Speaker of the Arizona House of Representatives and President of the Arizona Senate

Timothy Sandefur, Christina Sandefur, Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute, Phoenix, Attorneys for Amicus Curiae Goldwater Institute

Timothy A. LaSota, Timothy A. LaSota PLC, Phoenix, Attorneys for Amicus Curiae Arizona Free Enterprise Club

Daniel J. Adelman, Arizona Center for Law in the Public Interest, Spencer G. Scharff, Scharff PLLC, Phoenix, Attorneys for Amicus Curiae Professional Fire Fighters of Arizona, Will Humble, and Bradley J. Cohen, et. al.

Dennis Wilenchik, Lee Miller, John D. (Jack) Wilenchik, Wilenchik & Bartness PC, Phoenix, Attorneys for Amicus Curiae Arizona Republican Party

Paul F. Eckstein, Austin C. Yost, Perkins Coie LLP, Phoenix, Attorneys for Amicus Curiae Paul Bender

Shawn K. Aiken, Shawn Aiken PLLC, Phoenix, Attorneys for Amicus Curiae Hon. Kate Gallego, in her official capacity as Mayor, City of Phoenix, Hon. Coral Evans, in her official capacity as Mayor, City of Flagstaff, and Hon. Regina Romero, in her official capacity as Mayor, City of Tucson

Lisette Flores, Arizona State Senate, Rhonda L. Barnes, Jane Ahern, Arizona House of Representatives, Phoenix, Attorneys for Amicus Curiae Senate Minority Leader David Bradley and House Minority Leader Charlene Fernandez

JUSTICE GOULD authored the opinion of the Court, in which CHIEF JUSTICE BRUTINEL, and JUSTICES LOPEZ, BEENE, and MONTGOMERY joined. JUSTICE LOPEZ, joined by JUSTICE MONTGOMERY, filed a concurring opinion. VICE CHIEF JUSTICE TIMMER concurred in Parts II and III and dissented as to Parts IV–VII. JUSTICE BOLICK dissented from the grant of jurisdiction.

GOULD, J., opinion of the Court:

¶1 Article 4, part 1, section 1(9) of the Arizona Constitution ("Section 1(9)") outlines a specific procedure for collecting and verifying initiative petition signatures:

[E]very sheet of every such petition containing signatures shall be verified by the affidavit of the person who circulated said sheet or petition, setting forth that each of the names on said sheet was signed in the presence of the affiant and that in the belief of the affiant each signer was a qualified elector of the state, or in the case of a city, town, or county measure, of the city, town, or county affected by the measure so proposed to be initiated or referred to the people. (Emphasis added.)

¶2 This constitutional provision, by its terms, requires initiative signatures to be collected in person on physical sheets of paper. However, Petitioners ask us, in the face of the current Coronavirus Disease ("COVID-19") pandemic, to eliminate Section 1(9)’s procedure and replace it with E-Qual, the Secretary of State's online signature gathering system. On May 13, 2020, we issued an Order ("May 13 Order") denying Petitioners’ request. This Opinion explains the basis for that Order.

¶3 We hold that the Secretary of State ("Secretary") may not accept or file initiative signatures submitted through E-Qual because it does not comply with Section 1 (9)’s in-person procedure for gathering and verifying such signatures. We also hold that Section 1 (9) does not, as applied to Petitioners during the COVID-19 pandemic, violate their rights under article 4 of the Arizona Constitution, the First and Fourteenth Amendments to the United States Constitution, or the Arizona Constitution's guarantees of equal protection, due process, and free speech. Despite the current limitations on social interactions caused by COVID-19, Section 1 (9)’s in-person procedure does not prevent a reasonably diligent initiative proponent from gaining access to the ballot. As a result, Section 1 (9) does not impose a severe burden on Petitioners’ voting rights and is justified by the state's important regulatory interest in protecting the integrity of initiative elections.

¶4 Further, we hold that Section 1 (9) does not unconstitutionally impinge upon Petitioners’ free speech right to engage in one-on-one communications with eligible voters. Any limitations on such interactive communications are caused by the virus, and not Section 1 (9). Indeed, in contrast to E-Qual's remote signature-gathering system, Section 1 (9)’s in-person requirement is designed to facilitate in-person communications between circulators and potential signers, not limit them.

¶5 Finally, we hold that even if Section 1 (9) imposes a severe burden on Petitioners’ constitutional rights, it survives strict scrutiny. Section 1 (9) advances the state's compelling interest in protecting the integrity of initiative elections, and E-Qual does not provide a viable alternative to Section 1 (9)’s signature verification procedure.

¶6 At the time we issued our May 13 Order, we concluded that despite the onset of COVID-19, Petitioners could, by exercising reasonable diligence, comply with Section 1 (9) and gain a place on the ballot. When Petitioners filed their special action, they had approximately four months to collect signatures before the July 2 filing deadline. Respondents claimed that Petitioners could safely collect in-person signatures during this period. In response, Petitioners argued that such collection efforts were "a practical impossibility." In short, rather than presenting evidence of their diligent efforts to comply with Section 1 (9), they simply advised us that without access to E-Qual, their "signature gathering will halt." We disagreed.

¶7 COVID-19 did not eliminate face-to-face political activity in this country. And although recent developments do not provide a justification for our May 13 Order, the fact is that despite not having the use of E-Qual, three of the four Petitioners were able to collect enough signatures to satisfy the minimum signature requirement. Indeed, Petitioners were able to collect hundreds of thousands of signatures after the onset of the virus.

¶8 Our decision today protects the people's right to legislate by initiative. The framers of our Constitution never sought to guarantee every initiative, including erroneous and fraudulent measures, a place on the ballot. Rather, as part and parcel of the initiative right, they adopted Section 1 (9) to protect the integrity of initiative elections by ensuring that only valid initiatives made it on the ballot. The cornerstone of this protection is Section 1 (9)’s requirement that circulators personally witness every signature made on a petition sheet.

¶9 But our decision preserves far more than the right to legislate by initiative. The people of this state look to us to uphold the law, and we must act consistently with that imperative. Petitioners claim that COVID-19 makes it necessary, this one time , to set aside Section 1 (9). But they fail to see the long-term damage such a decision would cause to our system. Applying a rule of necessity here, we would justify setting aside other laws and constitutional protections whenever a crisis or emergency arises. Indeed, if COVID-19 justifies setting aside Section 1 (9) today, then perhaps tomorrow it will be used to set aside other constitutional protections. In short, our decision would lie "about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need." Korematsu v. United States , 323 U.S. 214, 246, 65 S.Ct. 193, 89 L.Ed. 194 (1944) (Jackson, J., dissenting).

¶10 We do not suggest that Section 1 (9)’s verification procedure is the best or only means to protect the integrity of the initiative process. Indeed, perhaps Petitioners are correct in asserting that even absent COVID-19, they, like candidates, should have had "access to E-Qual from the get-go." But Section 1 (9) is the law and we will not re-write the Constitution in the middle of an election simply because some find it "too inconvenient for present-day operation." W. Devcor, Inc. v. City of Scottsdale , 168 Ariz. 426, 432, 814 P.2d 767, 773 (1991). If the people of Arizona believe Section 1 (9) is outdated, it is their right, if they wish, to amend it.

¶11 We sometimes forget the sacrifices it took to create and preserve a nation based on the rule of law. It is easy to take for granted. And lest we forget, the people who established this system faced emergencies too. But they understood the dangers posed by governing by necessity, especially in times of crisis. We should respect and embrace their wisdom.

I.

¶12 The Petitioners are four political action committees ("PACs") seeking to place statutory initiatives on the November 2020 ballot. They are: (1) Second Chances, Rehabilitation, and Public Safety ("Second Chances"); (2) Invest in Education; (3) Smart and Safe Arizona; and (4) Save Our Schools Arizona ("SOSAZ"). Second Chances, Invest in Education, and SOSAZ filed their initiative applications and began gathering petition signatures...