By Kiera Riley
and Howard Fischer
Capitol Media Services
PHOENIX -- A measure proposing major reforms to the Empowerment Scholarship Account program will no longer go to voters after missing the mark on signatures, according to a ruling from the Arizona Supreme Court.
In their Tuesday ruling, the justices stopped short of issuing a final signature count. What they did to is set out the correct formula to calculate the final number and sent it back to the trial judge who will decide if at least 255,949 of the signatures are valid.
But attorney on both sides of the fight over Proposition 212 agreed in a filing Monday that under the state high court’s preferred formula, the measure missed the minimum requirement by around 12,000 signatures. And the end result leaves voters without a chance to weigh in on whether to enact further guardrails on enrollment, spending, academics, safety and security in the more than $1 billion program.
Opponents of the measure like House Speaker Steve Montenegro, the American Federation for Children and the Arizona Free Enterprise Club who declared an early victory Monday doubled down in light of the ruling, heralding the end of a measure they claimed would doom the program.
Meanwhile, educators and teachers' unions backing the measure claimed the hundreds of thousands of signatures collected still shows strong support for reforming the program.
"The lengths that the voucher lobby went to invalidate signatures with scorched-earth legal objections shows just how terrified they are of Arizona voters actually having a say in how our taxpayer dollars are spent,'' said Beth Lewis, director Save Our Schools Arizona which advocates for public education.
And she said the legal campaign to kill the measure shows "how sure they were that Arizona voters would prioritize funding a robust public education system over private schools that pick and choose students and create a segregated system of haves and have-nots.''
The Protect Education Accountability Now committee turned in 415,438 signatures as of the filing deadline, and foes of the act swiftly filed suit, claiming deficient signatures and ineligible petition circulators made it so the measure fell short.
After reviews by the Secretary of State, the county recorders and the court, the margin between total signatures turned in and the 255,949 necessary to qualify kept shrinking. And at the end of proceedings at the trial court, attorneys agreed the minimum number of signatures sat at around 316,993.
The Arizona Supreme court was then left to decide the math.
Attorneys primarily sparred about duplicate signatures and "double'' invalidating an otherwise valid signature.
All that is related to the process.
After taking into account signatures struck by the Secretary of State and in litigation, county recorders conduct a review of a random sample of signatures and return a validity rate. The average validity rate across the state is then applied to the final count of valid signatures to get a final signature count.
But in past Arizona Supreme Court rulings, justices found the method can improperly "double-count'' invalid signatures and remove valid signatures from the final count in the process
Kory Langhofer, attorney for voucher advocates, told the court that duplicate signatures must be invalidated. And he said there was a way to work around any improperly struck signatures.
But James Barton, attorney for the Protect Education Act, asked the court to keep in already invalidated duplicate signatures and then apply the validity rate to ensure no valid voter signatures are swept up in struck signatures -- a method both sides agreed which would have put the measure on the ballot.
"We are not persuaded,'' Chief Justice Ann Scott Timmer wrote in the order. "The committee's proposed adjustments would credit the petition with signatures the Legislature has directed be removed.''
The ruling still leaves the final order on whether there are enough valid signatures to Maricopa County Superior Court Judge David McDowell. But both Langhofer and Barton, in a stipulation filed with the court, acknowledged the outcome: If the duplicates are removed and the county validity rate is applied -- as the Supreme Court now has ordered -- the measure must fail.
Under this ruling, Langhofer puts the estimated number of signatures at 243,834, about 12,000 short of the minimum required to appear on the ballot.
The death of Prop. 212 doesn't end the fight over whether the Empowerment Scholarship Account program needs to be revamped.
Proponents contend that what started out as a way of helping students with special needs has now ballooned into a system that allows any student to get a voucher of taxpayer money to attend private or parochial schools or for home schooling. The basic payment is now about $7,500 a year.
There are now more than 100,000 students with these accounts at an annual cost of more than $1 billion.
Prop. 212 sought to rein that in with new oversight and regulations, particularly of the kinds of items that can be purchased. That followed published reports that parents had sought reimbursement for items as varied as kitchen appliances, lingerie, jewelry and trips to theme parks.
Another provision would have denied financial help to students from families with more than $150,000 annual income.
While the American Federation for Children celebrated the demise of the initiative, the organization that supports vouchers acknowledged that the ESA program still must be reformed in some way.
"The status quo is supported by less than 10% of voters, while a super-majority want a program that both works for families and ensures responsible stewardship of taxpayer dollars,'' CEO Tommy Schultz said in a statement. "The time is now to shore up Arizona's ESA program with practical solutions, bringing it in line with every other similar program in the country, to sustain it for generations to come.''
Montenegro also acknowledged that keeping Prop. 212 off the ballot this year doesn't make the issue go away.
"Arizona families dodged a bullet,'' said the Republican House speaker from Goodyear. "But we can be sure the unions and their out-of-state funders will be back again next time.''
But Montenegro said his focus is making sure the program is "strengthened and protected against future attacks.''
Lewis, for her part, is working against that -- with her eye on November.
"We have a Legislature right now that is dead set against any guardrails for the voucher program, even the basic things like fingerprinting,'' she said.
"Clearly, we need a new Legislature,'' Lewis said. "We've always known that.''
And if there is a shift in political power away from Republicans, she said, the changes sought in Prop. 212 could be enacted without having to go to the ballot. Lewis said she believes that is an attainable goal.
"We were already planning to knock on hundreds of thousands of doors for Protect Education,'' she said. "And so now those knocks just get laser focused on candidates that support our public schools.''
Tuesday's Supreme Court decision on the fate of Prop. 212 is not a total loss for committee.
In a separate ruling, the justices said Proposition 145, crafted by legislative Republicans as a kind of poison pill should Prop. 212 pass, cannot be sent to voters.
That relates to HCR 2048, a measure approved on the last days of the session which was promoted as protecting the ability of children in military families who get ESAs to save up the money not spent each year for college.
Prop. 212 as crafted would have eliminated such "banking'' for all voucher recipients. And it was worded to take effect regardless of whether voters approved or rejected Prop. 212.
But Timmer, writing for the unanimous court, pointed out that Prop. 145 did more than that.
It sought to put a provision in the Arizona Constitution that any law that is passed that would undermine the right of military families to keep their voucher dollars would be entirely void -- and not just the provisions dealing with military families. And she rejected arguments that the two provisions are close enough to allow lawmakers to out them into a single take-it-or-leave-it package.
"An examination of relevant factors shows that HCR 2048's provisions are not sufficiently interrelated to form a consistent and workable proposition that, logically speaking, should stand or fall as a whole,'' the chief justice wrote. And she said that poison pill in Prop. 145 -- invalidating future changes -- also would have affected the constitutional right of people to propose their own laws, something entirely separate from the discrete question of vouchers for military families.
That ruling is significant as the committee that was pushing Prop. 212 already is seeking volunteers for some potential future effort. The high court decision blocking a vote on Prop. 145 means that there will be nothing in the Arizona Constitution to block another bid.
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