By Howard Fischer
Capitol Media Services
PHOENIX -- A judge on Friday ordered the Republican-controlled Legislative Council to reword how it proposed to summarize a measure on abortion rights.
"The term 'unborn human being' is packed with emotional and partisan meaning both for those who oppose abortion and for those who endorse a woman's right to choose whether to have an abortion,'' wrote Maricopa County Superior Court Judge Christopher Whitten. He ordered the council to remove the phrase from the brochure describing all ballot measures that will be mailed to the more than 4 million registered voters ahead of the Nov. 5 election.
Whitten, however, spurned a request by Austin Yost, the attorney for Arizona for Abortion Access, to direct the council to replace that with the word "fetus.''
The judge said during the court hearing on the issue that it's one thing for him to rule on whether the phrase complies with Arizona law that requires "an impartial analysis'' of the provisions of a ballot measure. That he has now done.
But Whitten said it is quite something else for a judge to specifically choose words that comply with the law. That, he said, is once again the job of the council.
Friday's ruling will not be the last word.
``The ruling is just plain wrong and clearly partisan,'' said House Speaker Ben Toma, a Peoria Republican, abortion foe and candidate for Congress. ``We are appealing.''
But proponents of what is Proposition 139 cheered the ruling.
"We are pleased to be one step closer to making sure Arizona voters get accurate and impartial information about our citizen-led effort to restore abortion access before they vote this fall,'' said Dawn Penich, spokeswoman for Arizona for Abortion Access in a prepared statement.
What Whitten decided, however, could be moot.
Arizona Right to Life has filed a separate lawsuit arguing that the measure should not be on the ballot at all.
Attorney Timothy La Sota contends that the wording of the measure, as well as the summary prepared by proponents that appears on the first page, are inherently misleading. He said that means that some people may not have understood what they were signing.
La Sota, however, did not identify in the legal filings anyone who he contends was misled. Nor did he mention that the full wording of the initiative is required to be attached to each petition if would-be signers want to read it.
But La Sota said the wording issue is sufficient so that Maricopa County Superior Court Judge Melissa Julian should toss out all of the 823,685 signatures.
If that argument doesn't convince the judge, he said that there are close to 200 circulators whose signatures should not be counted based on his claims that they were legally unqualified to gather names on the petitions. Reasons range from failing to register to not providing required information or having a felony conviction.
Here, too, however, La Sota does not spell out how many of the signatures he believes Julian should toss.
That number is crucial: Only 383,923 of those signatures submitted need to be found valid to qualify for the ballot.
The hearing on that issue won't occur until at least this coming week.
There is no hard evidence on the importance and effect of the question of how a ballot measure is described by the council.
That same pamphlet also will contain multiple 300-word arguments submitted by supporters and foes of each measure.
The secretary of state's office, which publishes it, does not edit those comments, requiring only that those making the arguments pay a $75 filing fee.
On top of that, both sides are expected to spend millions of dollars in commercials and other publicity designed to convince voters to see things their way.
But Arizona for Abortion Access thought the issue important enough to have lawyers file suit and take the case to court. They even called Dr. Patricia Habak, a board certified obstetrician and gynecologist, to tell Whitten how the phrase "unborn human being'' is not medically accepted and not used in teaching or in medical literature.
Proponents of Prop 139 are not the only ones challenging the actions of the Legislative Council this year.
Still pending is a lawsuit filed by Make Elections Fair who contend the council approved a misleading description of what would be Proposition 140.
That measure would scrap the current system of partisan primaries. It would be replaced by a single open primary for each office where all candidates from all parties would run against each other and all individuals could vote, regardless of party affiliation or independent registration.
It would then be up to the Legislature or, if it didn't act, the secretary of state to determine how many individuals advance to the general election.
If just two, then it would be the top-two vote-getters in the primary, regardless of party. But it also permits lawmakers to allow up to five, in which case the general election would use a system of ranked-choice voting.
Mary O'Grady, representing initiative supporters, said the problem with the summary crafted by the council is it lists the possibility of ranked-choice voting first, before any of the other mandatory provisions of an open primary. She contends that fails the legal test requiring the council to prepare "impartial'' descriptions.
A hearing on that is scheduled for Aug. 9.
There also are separate lawsuits regarding measures on minimum wages and judicial elections, though those are about whether they violate a constitutional measure limiting ballot initiatives and referenda to a single subject.
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