By Howard Fischer
Capitol Media Services
PHOENIX -- The attorney for groups seeking to use an online system to finish gathering signatures for their initiatives is asking a federal judge to block the state from intervening in the case.
In new filings Wednesday, attorney Jim Barton said there is no reason to expand the list of defendants to more than Secretary of State Katie Hobbs and the county recorders in the state's 15 counties.
He told Judge Dominic Lanza that these are the people responsible for administering elections. And more to the point, they are the ones who can determine if creating a one-time exception from laws requiring in-person signatures on initiative petitions will present problems.
The move comes as Attorney General Mark Brnovich points out that Hobbs has said she doesn't intend to challenge the lawsuit. The secretary of state also said she no reason why initiative drives cannot use the existing E-Qual system already available for political candidates, even though that is not allowed under state law or constitutional provisions.
"The state has an unquestionable interest in defending the constitutionality of its law,'' wrote Drew Ensign, the deputy solicitor general for Brnovich.
But Barton said the attorney general is missing the point.
"The underlying action does not challenge the facial constitutionality of the statutes at issue,'' he said.
"Nor does it seek to permanently alter Arizona's system to for qualifying initiatives for the ballot,'' Barton continued. "Instead, it seeks emergency action to ensure that current laws, as applied during the pandemic, do not unduly burden the exercise of free speech and Arizona's constitutional right to initiatives.''
Barton's lawsuit is only one of two seeking a one-time exception to the requirement for initiative circulators to get their signatures in person due to the COVID-19 outbreak along with stay-at-home orders issued by Gov. Doug Ducey that challengers say makes it impossible for each of them to collect the necessary 237,645 valid signatures by July 2 to put their issues on the November ballot.
The Arizona Supreme Court, considering a parallel challenge by attorney Roopali Desai on behalf of four other initiative drives, already has agreed to allow intervention by not only Brnovich but separately by the Republican leaders of the state House and Senate. The justices say they will decide the issue based on the legal pleadings, without hearing oral arguments.
Separately, Gov. Doug Ducey, who issued the stay-at-home order and various other directives, said he does not intend to use the emergency powers he invoked last month to grant any waiver from the laws requiring in-person signatures on initiative petitions.
Central to Barton's complaint is that the pandemic has created a unique situation that requires judicial intervention.
He said the two initiatives he represents had started to gather signatures the old fashioned way long before the outbreak. That requires circulators to approach voters, explain the issue and hand them a clipboard with a signature sheet and pen if they want to sign.
"This seemingly ordinary activity in 'normal' times cold prove to be harmful during the COVID-19 pandemic, and would be in violation of recommendations from the government to remain at home and avoid being in close proximity to others,'' he said, specifically the six-foot perimeter. So that, Barton said, brought a halt to in-person signature gathering, meaning that the requirement for people to sign in the presence of circulators cannot be accomplished.
What all that means, he said, is the the law, at least as applied during the pandemic, unconstitutionally interferes with the free speech rights of Arizonans to circulate initiative petitions.
Barton acknowledged that states are not required to allow people to refer their own measures to the ballot.
"But once it has, it may not regulate that right in a way that violates the federal constitution,'' he told Lanza.
The judge has scheduled a hearing for this coming week.
It's not just Hobbs who has no problem with the one-time exception to the in-person signature-gathering requirements of the law.
In a separate legal filing, Pima County Recorder F. Ann Rodriguez, a Democrat like Hobbs, told Lanza she believes he should allow for the temporary use of electronic signatures.
"There does not appear to be any technological reason why the secretary of state could not implement such a process,'' she wrote through Deputy County Attorney Daniel Jurkowitz. And Rodriguez pointed out that Hobbs' office already is using the E-Qual system to allow political candidates to file their own petitions for office.
"Since the portal already can verify registered voters in signing for candidates, it should be able to verify registered Arizona voters in signing for initiatives,'' she said.
-30-
On Twitter: @azcapmedia
