Section 1(9) of the Arizona Constitution requires “sheets” of petitions for ballot initiatives to be signed in the presence of the person who circulates the sheet. On direct appeal to the Arizona Supreme Court through a special action, the Court held in a May 13, 2020 Order that Section 1(9) requires in-person signatures and that—despite any difficulties caused by the ongoing pandemic and measures taken by the Governor—the First and Fourteenth Amendment rights of political action committees were not violated.
In a September 4, 2020 opinion providing reasoning for its Order, the Court further explained that:
- The Secretary of State may not accept or file initiative signatures submitted through an electronic petition-signing system because it does not comply with Section 1(9)’s in-person procedure for gathering and verifying signatures. The Court noted that it was not clear whether the Secretary could accommodate the required volume of petitions for ballot initiatives, even if the Court found it acceptable.
- Section 1(9) does not, as applied to the PACs during the COVID-19 pandemic, violate their rights under article 4 of the Arizona Constitution or the First or Fourteenth Amendments to the United States Constitution because it does not prevent a reasonably diligent initiative proponent from gaining access to the ballot. The Court noted that (1) there was ample time prior to the pandemic for the PACs to seek signatures and (2) measures could be taken during the pandemic to still seek signatures, which the Court considered to be confirmed by the fact that, after the Court made its decision but before it published its opinion, three of the four PACs achieved the required number of signatures.
- Section 1(9) does not unconstitutionally impinge upon the PACs’ First Amendment free speech right to engage in one-on-one communications with eligible voters. The Court held that any limitations on such interactive communications are caused by the virus, and not Section 1(9).
- Even if Section 1(9) imposes a severe burden on Petitioners’ constitutional rights, it survives strict scrutiny because Section 1(9) advances the state’s compelling interest in protecting the integrity of initiative elections, and an electronic system does not provide a viable alternative to Section 1(9)’s signature verification procedure.
Justice Lopez filed a concurring opinion, in which Justice Montgomery joined, referencing general principles of the rule of law.
Justice Timmer concurred in part and dissented in part, stating that she would hold that the Governor’s stay-at-home order combined with strict enforcement of Section 1(9)’s signature requirements violated the PACs’ and individual voters’ First and Fourteenth Amendment rights.
Justice Bolick filed a dissenting opinion, stating that he believed the Court should decline jurisdiction because the Secretary of State does not possess authority to provide the relief sought—use of an electronic petition-signing system.
Posted by: Travis Hunt