PHOENIX — Groups trying to put measures on the November ballot are asking courts to let them gather the remaining signatures they need online.
In a new lawsuit last Thursday, lawyers for six initiative campaigns argue that COVID-19 has made it effectively impossible for them to make contact with individuals and get them to sign the petitions. So they are asking courts to declare that they have the same right as political candidates to have people use the existing E-Qual system to get the signatures they need.
Attorney Roopali Desai, representing four of the petition campaigns, told the Arizona Supreme Court she believes that the constitutional rights of Arizonans to propose their own laws and constitutional amendments should have long required that their ability to circulate petitions be no more onerous than for other types of petitions. And she said that they should have had access to that E-Qual system all along.
“But at the very least, current exigencies demand that they now have access to that system starting immediately, and until the deadline to submit initiative petitions and signatures,” Ms. Desai said.
Jim Barton, filing his own case in federal court, expressed similar sentiment in asking a judge to declare that, given the pandemic, it is an “undue burden” to require circulators to comply with laws that require they get signatures in person.
That deadline for each of the campaigns to get 237,645 valid signatures is July 2, meaning there’s not a lot of time for the judges in both cases to consider the issue, listen to arguments and rule.
At the heart of both argument are constitutional provisions which say that the right to make laws is not exclusive to the Legislature.
“The people reserve the power to propose laws and amendments to the constitution and to enact or reject such laws and amendments at the polls, independently of the legislature,” the constitution reads. And then it sets up requirements for how many signatures are needed to put issues on the ballot.
Ms. Desai is not challenging those numbers or even the filing deadline. But she said that constitutional right matters.
“And when we have a circumstance that makes that impossible, and their rights aren’t able to be upheld, the courts are an appropriate place to look for relief,” she told Capitol Media Services.
Ms. Desai said there’s already precedent for what she is seeking: the E-Qual laws that allow candidates to gather signatures for their nominating petitions online. That system is linked to voter registration records, including images of signatures, in a way designed to ensure the validity of the names on the petitions.
“So we are asking the court to uphold the constitutional right of citizens to initiate laws by extending an already existing program that allows candidates to collect signatures online to petitioners during this period of time because of the exigent circumstances we are experiencing,” she said.
And Ms. Desai said the fact that lawmakers have refused to allow online signature gathering for initiative petitions does not preclude the justices from concluding otherwise. She said it is the role of courts to interpret the law, to determine whether a law is unconstitutional or problematic, or whether it is unequally applied.
Neither Secretary State Katie Hobbs, who is the state’s chief elections officer, nor Attorney General Mark Brnovich would comment on the lawsuits.
One potential legal issue could be whether the pandemic — and even the stay-at-home order by Gov. Doug Ducey — is a bar to the ability of these campaigns to gather the necessary signatures.
There is no prohibition on people going door-to-door to seek signatures or standing outside of public or commercial buildings hoping to convince people to sign the petitions. In fact, the stay-at-home order issued on Monday by the governor has a specific exemption for those exercising their First Amendment rights, which would include circulating petitions.
Ms. Desai, however, said that doesn’t represent the reality of the situation.
“I’d invite you to stand in front of a library and see if you see a single individual pass by right now,” she said. And Ms. Desai said it’s irrelevant that people are still going to grocery stores which is a place that petition circulators sometimes stand.
“It’s a matter of whether or not people should be forced to make the Hobson’s choice of exercising their right to sign a petition, or collect a signature petition, and get sick,” she said. That, Ms. Desai said, makes the question whether it is “effective” to stand outside a grocery store to gather signature, “not whether we can send armies of people out to try to collect signatures.”
It’s not just the Ducey order that Ms. Desai said creates a practical barrier to people exercising their right to propose their own laws through initiative. She cited recommendations by the Centers for Disease Control and Prevention that people avoid social gatherings of 10 or more, that people with underlying health conditions should stay home, and that everyone practice “social distancing” by maintaining a six-foot buffer.
“The effect of these official proclamations and guidance is stark,” Ms. Desai said. “Traffic is non-existent, streets are empty, large events are canceled, and people are staying at home when possible to help mitigate the spread of COVID-19.”
And even if there were a safe way to gather signatures, Ms. Desai said there’s something else.
“Large public events that have historically been the ripest ground for gathering petition signatures will now be non-existent for at least another month, but probably longer,” she told the justices. “In short, signature gathering will halt, and the initiative proponents’ hard word and investment is in jeopardy.”
Attorney General Mark Brnovich is not taking a position on the claim by Ms. Desai that, given the COVID-19 outbreak and the governor’s stay-at-home order, the in-person requirement infringes on the constitutional right of people to propose their own laws. Instead, he told the justices, it’s not ripe for them do decide — at least not until the challengers seek relief from Mr. Ducey.
“The governor is uniquely situated with purposes and powers that allow him to ascertain the scope of the pandemic at this time and as projected over the near future, how it impacts different parts of the state, and the practicality of in-person signature collection,” Mr. Brnovich said.
There was no immediate response from the governor’s office.