Arizona Legislature to focus on education and elections, among other issues, in 2023
By Howard Fischer
Capitol Media Services
PHOENIX -- The 2023 Arizona legislative session is being brought to you by the letter E as in education funding and election issues.
These promise to be among the most contentious issues as lawmakers return to the Capitol on Monday.
They're certainly not all that is likely to be on the agenda.
Abortion issues remain a perennial subject. That is only enhanced this year by the fact that Arizona finds itself with a law on the books that hasn't been enforced -- and really hasn't been debated -- since 1973.
That is complicated by the fact that the Arizona Supreme Court still may have something to say about it despite an appellate court deciding that doctors can terminate pregnancies up to 15 weeks.
And while lawmakers approved $1 billion last year to find new sources of water, that is unlikely to be the end of the discussion.
The desalination project that's being pursued is not just costly and years away from fruition but has raised questions about the process being used to award a contract.
The most immediate issue, however, is education funding.
Lawmakers and former Gov. Doug Ducey made a big point last year of saying how much in new dollars was going into K-12 education.
Only thing is, they never addressed the fact that voters in 1980 approved an "aggregate expenditure cap,'' an absolute limit on what the state can spend on education.
It is adjusted annually based on inflation and student growth.
But the infusion of new dollars, coupled with a loss of students during COVID, has put the total allocated nearly $1.4 billion above what can be spent.
Republicans, including Ducey, promised a special legislative session, but not until a lawsuit over a tax hike was resolved. But even after that, they balked.
And then Arizonans elected Democrat Katie Hobbs as governor.
The result was that Ducey and Republicans, rather than live up to that commitment while they were in power in 2022, sought to pack any special session at the end of last year with other issues they knew that Hobbs would not sign once she took office. That included demands like expanding the amount of money available in vouchers of state tax dollars for students to attend private or parochial schools.
But that proved unacceptable to not just Democrats, who provided the necessary votes for the budget, but some Republicans who said it breaks the promise.
Now the clock is ticking.
If lawmakers do not waive the limit by March 1, schools will have to cut approximately 17 percent of their budgets.
But all those cuts would have to be made in the months remaining in the fiscal year, essentially tripling the effect. And some districts have warned that could force schools to actually shut down.
For the moment, the new governor appears willing to wait to see if the House and Senate, which still remain under Republican control, act on their own.
"I'm hoping that it will happen naturally,'' she told Capitol Media Services. "But it needs to be the top priority and it needs to be taken care of.''
Rep. David Cook, R-Globe, already has introduced a measure to waive the limit this year. But for the moment, he is the only one signed on.
And what of GOP leadership?
"We've had discussions,'' he said. "And I'm very optimistic.''
Cook said this is a particular problem for schools outside the major metropolitan areas.
"We don't have a charter school every three miles,'' he said. "And those small public district schools are the only system that we have.''
Hobbs is likely to be less interested in what state lawmakers have to offer in the form of what some consider "election reform.''
Sen. Wendy Rogers, R-Flagstaff, will head the Senate Elections Committee.
Rogers already was unhappy with election procedures even before the problems that developed on Election Day.
For example, she sponsored legislation last year to abolish early voting and to forbid the use of electronic voting and tabulating equipment. Neither got out of the Senate.
Rogers, in social media posts, has made it clear she believes the 2022 election was stolen from Kari Lake, even saying that Hobbs "knew the fix was in.''
Look for legislation designed to address at least some of the issues that Lake contended resulted in erroneous election returns.
That starts with early voting.
Some Republicans contend, without any proof at all, that provides an opportunity for mischief as election officials can tally those early ballots and then figure how many fake ones they need to insert to alter the results.
Then there's the related issue of whether early votes are reliable.
Lawmakers approved a ban on so-called "ballot harvesting'' years ago, making it a felony to take someone else's voted ballot to a polling place. The only exceptions were for family members, those in the same household and caretakers.
But that still didn't satisfy some, including Sen. J.D. Mesnard, R-Chandler, who put a measure on the ballot to require that an early voter provide not just a signature on an envelope but other identifying information like a driver's license. Voters rejected that.
Lake separately challenged the practice in some counties of matching signatures on early ballots not with a voter's registration but with other documents on file, like a request for an early ballot. But that claim was tossed when a judge said she should have brought it prior to the election.
Look for legislation on that this session.
And there is likely to be an effort to say that county supervisors have discretion in deciding whether to certify election results, an issue that arose after Cochise supervisors balked until a judge said they have no discretion under state law.
Potentially less controversial is a proposal by Maricopa County Recorder Stephen Richer to require early ballots to be submitted by the Saturday before the election. He said that will end the glut of same-day filings -- about 290,000 in his county alone -- that delays prompt election results and leads to accusations that something untoward is taking place in the count.
The incoming governor, however, already has signaled her opposition.
"I think changing even the ability to drop off ballots on Election Day would require a huge amount of retraining for voters which, in essence, would disenfranchise a lot of voters,'' Hobbs told Capitol Media Services.
Lawmakers also return to face the question of what restrictions they want on abortion.
That hasn't been an issue since 1973 when the U.S. Supreme Court took the issue away from states and ruled that women have a constitutional right to terminate a pregnancy prior to fetal viability. That is generally considered somewhere between 22 and 24 weeks.
GOP legislators last year approved a 15-week ban in anticipation of a revamped Supreme Court upholding a similar law from Mississippi. But the majority of the justices went further, overturning the 1973 decision and letting states set their own rules.
Outgoing state Attorney General Mark Brnovich argued that restored a law that traces its roots back to territorial days, making abortions illegal except to save the life of the mother.
He even got a Pima County Superior Court judge to agree.
Planned Parenthood Arizona successfully convinced the state Court of Appeals that the newer 15-week law takes precedence. And the organization is not alone in that belief.
"This law was signed this year,'' Ducey told Capitol Media Services after signing the bill. "I think that the law that you signed in 2022 supersedes 1973.''
That case is likely now headed to the Arizona Supreme Court.
While the issue of the territorial-era statute appears resolved, at least for the time being, there's a larger issue looming.
Hobbs wants to return the law to where it was before last year's Supreme Court ruling, when abortions could be performed up until fetal viability, meaning 22 to 24 weeks. That also takes care of the problem that the 15-week law has no exceptions beyond that point in cases of rape or incest.
"That's a difficult hill to climb, obviously,'' she told Capitol Media Services. But Hobbs said she may have to settle for what she can get, meaning a ban after 15 weeks.
"At a minimum, it provides some access to safe, legal abortion,'' she said. And the new governor noted that whatever lawmakers do might just be an interim measure, predicting there will be a proposal on the 2024 ballot to put the right to abortion into the Arizona Constitution.
With little dissent, lawmakers last year agreed to set aside $1 billion over three years to find new water. And the law pretty much requires it be something from outside the state and cannot be from buying up water rights from farmers.
The legislation also revamped the little known Water Infrastructure Finance Authority, which had existed mainly to provide grants for small projects, giving its new board, headed by a Ducey appointee, the power to negotiate.
But last month, even before the authority had a new director and without any formal bids or presentations, the board was presented with -- and agreed to try to strike -- a deal with IDE Technologies, an Israeli-based company with whom Ducey had met last summer.
In essence, the state would guarantee to purchase the water that would be produced from a plant that IDE would build on the Sea of Cortez and pipe into Arizona. WIFA, in turn, could resell that water to others.
IDE needs that guarantee to get loans for the plant that could cost more than $5 billion.
The cost to the state and water users, however, remains unclear, possibly up to $3,300 an acre foot -- about 325,000 gallons of water. That is enough to supply anywhere from two to four homes per year, depending on the community.
It's also more than 10 times what the Central Arizona Project charges.
Not everyone who voted for the $1 billion appropriation likes the direction WIFA is going.
"This reeks of backroom deals,'' complained Sen. Lisa Otondo, D-Yuma, during an agency meeting. And Warren Tenney with the Arizona Municipal Water Users Association, which represents the state's largest cities, said the plan was being rushed.
The practical problem for concerned lawmakers is that they gave up their right to veto WIFA's actions. That was designed to keep politics out of it.
But they are not without remedies to get the board's attention.
WIFA has received only its first of three payments. And the next legislature is not legally bound to fulfill the commitment for two more made by previous lawmakers.
There is another concern: what some see as a lack of any emphasis on conservation as an alternative.
Even Hobbs said that while desalination may need to be part of a long-term solution -- a working plant is years away -- she believes that there needs to be a look at more immediate solutions, like saving and reusing what the state already has.