Arizona’s ESA Ballot War Ends In A Draw

Propositions 145 and 212 are both effectively dead after court rulings yesterday. None of the big changes that Prop 212, the citizen initiative, proposed–a new $150,000 household-income cutoff for universal eligibility,  testing requirements, and various purchasing restrictions for ESA programs–will be up for a public vote. And the Republican-legislature-backed Prop. 145, which sought extra protections for military families, also won’t be on the ballot. As a result, the existing school-choice program remains essentially unchanged, while the fight returns to the Legislature.

“Obviously it’s too bad we don’t have the extra protection, but it’s a clean slate,” Tony Napolitano, senior attorney for the Goldwater Institute, who represented two intervenors defending Prop. 145 in the appeal, told Arizona Globe. “There’s no major immediate impact. In that sense it feels like the two canceled each other out.”

In an interview with Arizona Globe, Beth Lewis, director of Save Our Schools Arizona, expressed disappointment at the Prop. 212 decision. “Those are still Arizona voters whose voices have been removed. It’s a really sad day for Arizona voters,” she said, adding, “We had 14 weeks and we got more than 400,000 signatures.… It shows an overwhelming desire for voters to weigh in on this.”

Prop. 212 failed after a challenge to the validity of its petition signatures. Lewis said she believed she was up against deep-pocketed special interests.“It’s really difficult for a citizens initiative to make it when you’re up against big money and frankly courts that are not pro-public education,” she said.

Napolitano rejected the idea that Prop. 212 was some sort of authentic vox populi initiative, saying, “You know how these things work. You walk up, someone presents you with these issues when you have 15 seconds going into the grocery store…“Yeah this might have been the most signatures they’ve collected—though the Supreme Court rules they didn’t have enough valid ones… the actual test of anything is something that we’re not going to get to because the voters didn’t get a chance to look at it or examine it.”

This leads to a situation where both sides of this ballot fight feel disappointed, but also vindicated. Lewis indicated satisfaction at the demise of Prop. 145, which she called “an example of a really poorly written law that would have had tremendous constitutional implications.” Napolitano expressed disappointment in the loss, saying, “there were definitely protections that would have stayed in place and been useful going forward.”

Prop. 145 said that if any portion of a future law violated its military-family scholarship protection, the entire law would be void and courts could not sever the offending portion. The Court found that provision qualitatively different from simply protecting the military-family accounts and therefore incompatible with the Separate Amendment Rule. It also noted that the provision would override state constitution Article IV, which governs both the Legislature and voters’ initiative/referendum powers.

Lewis called Prop. 145 an “11th hour” referral that the legislature passed at the end of the session. Napolitano also described a last-minute school choice deal that fell through, and said that these dueling propositions were the result. “It’s going to be a deliberative process,” he said. “The fight either way is not over. This is a chance for future compromise…It’s up to the people in the legislature to keep making choices.”