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Law360 (May 14, 2020, 6:10 PM EDT ) The Arizona Supreme Court denied requests from four political action committees to allow online signatures for ballot measures amid the coronavirus pandemic, requiring those circulating petitions to continue collecting in-person signatures despite warnings that the practice posed public health risks.
In an order issued Wednesday, the justices denied relief to the political action committees, which were seeking to use E-Qual, a state online signature-gathering platform that is available to political candidates but not initiative petition drives.
The state attorney general, Mark Brnovich, a Republican, intervened in the case that the PACs brought against Democratic Secretary of State Katie Hobbs to argue that e-signatures would not meet the constitutional requirement for petition signature gatherers to sign an affidavit stating the petition was "signed in the presence of the affiant."
"My job is to defend the law and I'm going to continue doing so as long as I'm attorney general," Brnovich said in a statement shared with Law360. "A health crisis is not an excuse to ignore the constitution."
The measures supported by the PACs include a proposal to legalize and tax adult-use cannabis and a proposed income surcharge on high earners.
Hobbs had told the justices that as a result of the extraordinary circumstances and health risks posed by in-person interactions amid the COVID-19 pandemic, she would not oppose the PACs' request to collect signatures electronically if it were granted by the justices. One justice voted to grant relief to the PACs.
"We did not oppose the limited relief being sought in this instance if that is what the court ordered. We respect the court's decision and will continue with our preparations to process initiative petitions that are submitted," Hobbs said in a statement to Law360.
Roopali H. Desai, who represents the PACs, said she was disappointed but not surprised by the ruling.
"We made a strategic decision to go directly to the Supreme Court as a first and last result," Desai told Law360. "While not surprising that politics ended up winning the day, it's disappointing."
Desai said that one backer for a petition regarding private school vouchers, Save Our Schools Arizona, suspended its campaign after the ruling rather than allow its all-volunteer staff to risk their health.
"The Supreme Court's ruling forces Arizona citizens who want to exercise their constitutional right to vote, their right to initiative and their right to free speech to disregard facts and endanger their lives," the group said in a statement.
Petition campaigns have struggled to conduct signature-gathering efforts as usual while maintaining safety precautions and abiding by public health measures to combat the virus. A Nebraska organization backing a ballot measure to lower state property taxes said social distancing guidelines and limits on gatherings pushed the group to cease gathering signatures. In Montana, supporters of two proposed ballot measures for legalizing and taxing recreational marijuana began collecting signatures following a court ruling denying electronic collections.
While the Arizona ruling poses a challenge to the remaining campaigns, Desai said the backers were energized to qualify their petitions before the July 2 deadline for signatures.
"The landscape to collect signatures is just drastically different than it was in nonpandemic times," Desai said. "I think we have a long history here of the citizen initiative process working through the most difficult times to effect change."
Brnovich is represented by Joseph A. Kanefield, Brunn W. Roysden III, Drew Curtis Ensign, Jennifer Wright, Anthony R. Napolitano and Robert J. Makar of the Arizona Attorney General's Office.
The PACs are represented by Roopali H. Desai and D. Andrew Gaona of Coppersmith Brockelman PLC.
Hobbs is represented by Roy Herrera and Daniel Arellano of Ballard Spahr LLP.
The case is Arizonans for Second Chances et al. v. Katie Hobbs, case number CV-20-0098-SA, in the Arizona Supreme Court.
--Additional reporting by Asha Glover and Paul Williams. Editing by Robert Rudinger.
For a reprint of this article, please contact reprints@law360.com.
