Arizona Supreme Court Holds That Proposed Constitutional Amendment to Require Voting by Secret Ballot in Elections for Public Office and for Employee Representation Fails to Satisfy the Separate Amendment Requirement of the Arizona Constitution.

The Arizona Legislature referred to voters a proposed constitutional amendment known as Proposition 108, which would require voting by secret ballot for public elections and for employee representation.  Challengers filed a special action alleging that the proposition violated the separate amendment rule of Article 21, Section 1 of the Arizona Constitution.  The superior court agreed and enjoined the proposition’s placement on the upcoming ballot.  Proposition supporters appealed.

The Arizona Supreme Court affirmed.  Article 21, Section 1 provides that “[i]f more than one proposed amendment shall be submitted at any election, such proposed amendments shall be submitted in such manner that the electors may vote for or against such proposed amendments separately.”  This separate amendment rule is intended to prevent log-rolling — the practice of generating support for one proposal by linking its fate with that of an unrelated proposal. 

In a separate amendment challenge, the court examines whether provisions of a proposed amendment are sufficiently related to a common purpose or principle that the proposal can be said to constitute a consistent and workable whole, such that the provisions logically should stand or fall as one.  To satisfy the test, the provisions must be both topically related and sufficiently interrelated as to form a consistent and workable proposition.  Relevant factors may include whether the provisions are facially related, whether they concern a single section of the constitution, whether the matters have traditionally been addressed as one subject, and whether the provisions are qualitatively similar in their effect on either procedural or substantive law.

Here, the contexts of secret ballots for public elections and for employee representation are distinct and unrelated.  Because secret voting in public elections is already provided for by Article 7, Section 1 of the Arizona Constitution, the provisions of Proposition 108 do not concern a single section of the constitution.  Nor have public elections and employee representation historically been linked in Arizona law.  Finally, the provisions are not qualitatively similar in their effect on Arizona law. 

Justice Pelander wrote the opinion for the unanimous Court.  Justice Hurwitz, in a separate concurrence, emphasized that the Court’s analysis of the listed “factors” should not obscure or substitute for the essential inquiry; once the Court determines that there is no logical relationship between separate provisions in a single proposed amendment, that conclusion should end the analysis.  Justice Hurwitz further noted that the risk of log-rolling, which the separate amendment rule is intended to prevent, is heightened when, as here, one provision of a proposed amendment is already in the constitution.