Arizona Supreme Court Releases Details On 5-2 Vote That Kicked Invest In Education Off Ballot

Published: Friday, October 26, 2018 - 2:17pm
Mariana Dale/KJZZ
The Invest In Education campaign needed to collect about 150,000 valid signatures to bring a proposed tax increase for Arizonans who make more than $250,000 to the November ballot.

Eight weeks after the Invest in Education ballot initiative was kicked off the ballot, the details on the Arizona  Supreme Court’s opinion have been released.

The court voted 5-2 to strike the proposition that would have raised taxes to help fund public education.

Justices Robert Brutinel, John Pelander, Clint Bolick, Andrew Gould and John Lopez agreed: the 100-word description showed to petitioners signing for Invest in Ed quote created a significant danger of confusion or unfairness.

"We hold the initiative's proponents ... description of the initiative's principal provisions omitted material provisions and created a significant danger of confusion or unfairness to those who signed petitions to place the measure on the ballot," the majority wrote.

The opinion got into the gritty details of wording, and math, on the description. The two dissenters, Chief Justice Scott Bales and Justice Ann Scott Timmer, argued the description was not fatally flawed. Timmer wrote ambiguity in wording doesn’t preclude a statute from going into law, either by the Legislature or the voters.

At issue were the details on the ballot's wording: specifically whether it left out a change in income tax indexing. Per the decision, that is when "tax brackets are adjusted by the rate of inflation so that as incomes rise, they are not subject to higher rates of taxation simply because of inflation." The problem, the majority wrote, is the ambiguous wording left out that indixing provision in the new, proposed tax brackets, "the initiative would repeal indexing going forward."

Dissenting Justice Timmer wrote, in regards to ambiguity, "just as the Legislature may enact an ambiguous statute, so too may the voters."

Director of Arizona Center For Economic Progress David Lujan, who helped craft Invest in Ed, blasted the ruling.

“Any ambiguity should have been left to voters to decide, whether something applied or not," Lujan said.

Another issue were details in how the math would work to change the tax brackets, and whether the use of a percentage sign versus the phrase "percentage point" would create confusion that could have left petitioners to sign something they didn't understand.

All justices agreed the initiative's wording was not sufficiently vetted, though the two opinions disagreed over whether that mattered.

Chief Justice Bales wrote, ultimately "because I do not think that Proposition 207's description is fatally flawed, and I would otherwise affirm the trial court's judgment leaving the measure on the ballot, I respectfully dissent."

Activists are asking how Gov. Doug Ducey’s staff, who distributed the vote count to several reporters when the initial ruling came down, knew the non-public details.

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