Every election cycle, out-of-state special interests spend millions trying to put their bad ideas onto our ballot. Because these groups do not understand our laws or our constitution, the measures they peddle are poorly drafted and are often unworkable or illegal. In some instances, they do know better but don’t seem to care that their proposed measure is unconstitutional.

For example, in 2020, two out-of-state groups collected signatures to put the largest tax hike in state history on the ballot. Nonpartisan attorneys at legislative council told them prior to gathering any signatures that their measure was unconstitutional. They didn’t care. After a multi-million-dollar campaign that resulted in the measure passing by a slim margin, the Arizona Supreme Court ruled the initiative unconstitutional a year later.

Why was it on the ballot in the first place, if it was so clearly unconstitutional? The courts have long held that they currently do not have the power to consider any challenges to the constitutionality of a measure before it is passed on the ballot. The only challenge that can be brought is against the signatures filed with the Secretary of State, or for a violation of the single subject or separate amendment requirements.

But if an out-of-state group is trying to put a measure on the ballot that is clearly unconstitutional, like statutorily exempting a tax hike from a constitutional spending limit, as Prop 208 tried to do, a challenge is not considered “ripe.” Instead, costly campaigns are run on both sides, and only after voters have been presented with a broken measure can a challenge be brought.

Prop 136 changes that. If passed, Prop 136 would protect our election process from these unconstitutional measures by allowing the Arizona Supreme Court to review a proposed initiative before it goes on the ballot. If the court determines the measure is unconstitutional, it will not even appear on the ballot.

Voters probably already assume that the measures appearing on their ballot have been reviewed and vetted for constitutionality, which is a reasonable assumption. Prop 136 would help to ensure that.

At the legislature, bills are written by nonpartisan attorneys at Legislative Council, they must be assigned to a committee, placed on an agenda, receive a public hearing with testimony and input, receive a majority vote in the committee, pass a review in the Rules committee designed specifically to determine if measures are constitutional, then be placed on an agenda to receive debate from the whole chamber, finally receive a vote from the whole chamber, and if it passes, it restarts that process on the other side. Only if it passes out of that chamber and is signed by the Governor does it become law.

This long and cumbersome process at the legislature serves to weed out not only unpopular ideas that cannot get the votes, but also puts many eyes on the language to make sure if it does have the support, it is constitutional. But these checks simply do not exist in the ballot initiative process. Out-of-state groups hire attorneys to draft it, Legislative Council reviews it (if asked), and then the group files it, with or without any of the changes Legislative Council provided. Allowing for challenges before the measures appear on the ballot will save time, money, prevent confusion, and help ensure that only constitutional measures are presented to voters.

And perhaps Prop 136 will encourage those out-of-state groups to do a little more research, listen to the advice of Legislative Council, and not submit broken initiatives that violate our constitution.

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