Arizona judge rejects challenge to bundled election measure

In a new ruling, Judge Adele Ponce acknowledged claims by Tempe City Councilman Randy Keating that Proposition 144, put on the November ballot by Republican lawmakers, has multiple provisions. These range from enshrining in the Arizona Constitution that only citizens can vote, something already in state law, to restrictions on spending by foreign nationals to influence elections, as well as setting up new procedures for tallying ballots at each polling place versus bringing them to a central location.

And it would require all voters to show identification when casting a ballot — even those who vote by mail.

Keating told the judge the Arizona Constitution requires that voters should be allowed to consider each of these proposals separately.

The key, he said, are court rulings which say that the constitution itself requires that provisions in proposed amendments be "sufficiently related to a common purpose or principle that can be said to constitute a consistent and workable whole on the general topic embraced.''

By contrast, Keating said, what is being presented to voters deals with "far flung areas of the law,'' including voter qualifications, identification requirements, ballot tabulation, language giving lawmakers additional legal latitude in passing future election laws, "and — perhaps most perplexingly — campaign finance.''

But Ponce said it's not that clear — or simple.

She said the first test is whether all the elements of the proposed constitutional amendment are "topically related.'' And Ponce said everything in the measure fits within that legal box.

"Each aims to improve election integrity,'' the judge said. "The fact that the proposed amendment's provisions address different aspects of election security does not prevent them from being topically related.''

That, however, isn't the sole deciding factor.

Ponce said there also is a requirement that the parts of a ballot measure are "sufficiently interrelated.'' And here, too, she said, what's in the package fits.

"They each directly address some aspect of election integrity -- whether through requiring citizenship for voter registration, eligibility and financial influence, requiring government-issued identification prior to voting, providing the opportunity for ballot tabulation at the polls, or affirming the authority of the legislature to pass laws related to timely, accurate, efficient, or secure elections that promote public confidence,'' the judge said. And she said the fact that removing one provision wouldn't affect the rest is legally irrelevant to whether they can be offered in a single package to voters.

An appeal to the Arizona Supreme Court already has been filed.

Keating said the issue is about more than just the number of different changes that Prop 144 would make in election law. He said the package is designed to deceive.

For example, he cited the provision in the ballot measure about having to be a citizen to vote in state elections. That, said Keating, already is state law, having been approved by voters in 2004.

"These are things that are very clearly made to bait people into voting for a referendum in which they will then be taking away the rights and privileges that they've enjoyed,'' he said. And one of those, he said, is the right to vote by mail.

Prior to 1991, that ability was limited to those with a special reason, like a disability or being away from a home voting precinct on Election Day.

That year lawmakers approved "no excuse'' early voting. And it has proven popular, with more than 80% of the ballots cast that way.

Strictly speaking, the measure, by itself, would not outlaw early voting.

But what it does include is the requirement to provide identification before casting any ballot, "whether voting in person or by any other means.'' But there is nothing in the measure that says how someone voting by mail could accomplish that, leading to questions of whether that language, crafted by Rep. Alexander Kolodin, is simply designed to kill off the practice.

It wouldn't be the first effort.

Kolodin, the Republican nominee for secretary of state, filed suit four years ago on behalf of the Arizona Republican Party to ban voting by mail.

In legal arguments, he cited a provision in the state constitution which says that ballot measures have to be approved or rejected by voters "at the polls.''

"At the time Arizona's constitution was ratified, it was obvious to the Arizona Supreme Court that the plain meaning of 'the polls' did not include people's homes but rather means designated polling places with the voting booths and the like,'' Kolodin argued. But his bid for a ruling in his favor was rejected by the Arizona Supreme Court.

Keating said if the Supreme Court refuses to toss the measure off the ballot "there will be a robust 'no' campaign'' to convince voters to defeat it in November.