Invest In Ed Attorney: Arizona Proposition 208 Lawsuits Could Have 'Dire Consequences' For Initiatives

By Mark Brodie
Published: Wednesday, December 2, 2020 - 12:46pm
Updated: Thursday, December 3, 2020 - 8:12am

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MARK BRODIE: Voters approved Proposition 208, or the Invest in Education Act, in last month's election. It survived court challenges as well as signature-gathering challenges brought on by the pandemic before it qualified for the ballot. And now the measure faces two more lawsuits that seek to block the tax on wealthy Arizonans despite the vote. Yesterday we heard from Jon Riches, director of national litigation with the Goldwater Institute, which has filed one of the suits. Riches said the state constitution limits how money can be raised and spent.

JOHN RICHES: And Proposition 208 attempts to evade, in some cases quite expressly, both of those constitutional limitations.

BRODIE: Now we'll turn to attorney Roopali Desai, who's representing the initiative. Roopali, good morning.

ROOPALI DESAI: Good morning.

BRODIE: So let's start with what we just heard from John Riches. I assume you disagree with what he has to say. Give us sort of your elevator pitch as to why these lawsuits aren't going to be successful, you think?

Roopali Desai
Coppersmith Brockelman
Roopali Desai

DESAI: Well, we absolutely disagree with the claims that have been brought in the two lawsuits, which essentially raise the same argument: That somehow the Invest in Education Act violates the constitution. It plainly does not. And the claims that the plaintiffs are making in these cases are essentially an end-run around the initiative process. That — if the plaintiffs are successful in arguing that the people, for example, cannot impose a tax to pay for programs that they believe are worth funding in Arizona — then the initiative process in Arizona cannot continue on. It is, in fact, a requirement in Arizona initiatives that if you are going to be funding programs such as public education, you have to identify a revenue source. And, and in many, many initiatives before this one and throughout the history of Arizona, initiatives are funded through various kinds of taxes.

BRODIE: So as we noted when we spoke with Mr. Riches yesterday, this is not the first voter-approved initiative that would raise taxes. Prop. 301, which was a sales tax increase to raise money for education. There was Prop. 100 several years ago, which was a temporary 1 cent sales tax to help the state through the Great Recession. I'm curious why you think neither of those or any of the other initiatives that raise taxes in the past have had this kind of challenge?

DESAI: Well, I think that it's a very good question. And it goes directly to the heart of these plaintiffs who have been fighting vigorously to oppose funding for Arizona's public schools for a long time. And this opposition to the Invest in Education Act is not new. As you mentioned, there was litigation prior to the measure getting on the ballot that was not successful. The Supreme Court of Arizona unanimously reversed a trial court decision trying to invalidate the measure. And these folks are just absolutely focused on undermining and overturning the will of Arizona voters and will do so at all costs — including making arguments that would make a mockery out of the initiative process and many initiatives that have been passed. And you're right, there aren't just many statewide initiatives, but this happens at the city level. There are municipal initiatives that get passed where taxes are imposed. There was one in Tucson several years ago imposing a tax that would fund the zoo. There are statewide measures like the tobacco tax that funded hospitals, and that happened in Arizona statewide many years ago, as well as the ones that you referenced that impose taxes to fund education. So if these arguments had merit, then one would wonder why many of these other initiatives in our, in our state's history wouldn't have been challenged and overturned.

BRODIE: Is it safe to say that regardless of how these suits turn out, the precedent will be significant — either granting citizen initiatives the ability to continue to impose new taxes and to raise taxes or to prohibit these kinds of moves?

DESAI: Well, like I said, I think that if the plaintiffs are successful — and we do not think they will be — it has dire consequences for direct democracy and the initiative process in Arizona. You can't have a constitutional requirement that you fund an initiative through new revenue sources such as taxes, and then at the same time hold that voters cannot impose a tax to fund their initiative. The two are completely antithetical to one another. And that inconsistency would basically make it impossible for any group at the statewide or local level to have an initiative.

BRODIE: All right. We'll have to leave it there. That is attorney Roopali Desai representing the Invest in Education initiative. Roopali, thanks for your time. We appreciate it.

DESAI: Thanks for having me.

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