PHOENIX — Republican lawmakers acted illegally in how they told voters about effects of an initiative that would reform Empowerment Scholarship Accounts, the Arizona Supreme Court has ruled.
But it remains to be seen whether the initiative, Proposition 212, actually will make the ballot, as another judge is weighing whether it has enough valid signatures.
In a new Supreme Court order late Thursday, Chief Justice Ann Scott Timmer said the wording to explain effects of Proposition 212 written by Republicans who control the Legislative Council was "argumentative, speculative, and non-neutral.''
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She said the explanation gave only the interpretation of the GOP lawmakers who oppose the initiative's proposed changes to what is commonly called the voucher program, which provides tax dollars to parents to send their children to private and parochial schools. Those changes range from limits on how ESA funds could be spent, to disqualifying families who earn more than $150,000 a year.
Timmer said the lawmakers inaccurately sought to tell voters that if they approve Prop. 212 it would open the door to families who get vouchers being sued by the Protect Arizona Education Now Committee, the group sponsoring the initiative.
What the Legislative Council writes is critically important to elections because it goes into a brochure — which is supposed to provide an impartial explanation of all ballot measures — that is mailed to the homes of all of Arizona's 4.3 million registered voters.
Still not known if initiative will qualify for ballot
But whether voters will get to see Prop. 212 at all on their ballots is still being decided, and could come down to math.
In a ruling Thursday, Maricopa County Superior Court Judge David McDowell said he could not yet say for certain whether the initiative, titled the Protect Education Act, collected the 255,949 necessary signatures to secure a spot on the November ballot.
Backers submitted petitions in July with more than 420,000 names.
These now have been reviewed by the secretary of state and a special master appointed by the court. And, in three days of court hearings this week, McDowell issued rulings throwing out the petitions of some circulators he said were not legally entitled to collect signatures.
That leaves 348,269 signatures that, for the moment, are presumed valid.
But there are still missing reports on the percentage of valid signatures from Maricopa and Apache counties.
Also pending is another active lawsuit challenging the review process conducted by three other counties' recorders. And there is legal uncertainty on whether the final math calculation will result in some signatures already struck for one reason will be struck again for another, skewing the final numbers.
And that, for now, leaves the measure in legal limbo.
"The court agrees it is conceivable that a double count could occur, but the court cannot make a decision based upon a hypothetical double counting of duplicate signatures,'' McDowell wrote. "The court feels it has already been asked to address situations untethered to facts actually received in evidence because of the timeline in this case and the lack of reports from several of the counties.''
Alongside Secretary of State's Office screening and court review, counties conduct a random sample of 5% of petitions and report what percentage are valid — meaning the signers are registered to vote. Until the court receives a final average validity rate from all 15 counties, it cannot make that final calculation.
Attorney Kory Langhofer, on behalf of foes of the initiative, maintains the measure cannot go to voters if that final sampling shows a validity rate of less than 78.3%.
Both sides await those final numbers from Maricopa and Apache counties, something the court may not get until Tuesday. But even that won't end the case.
Attorney James Barton, who represents the Protect Education Accountability Now Committee that is backing Prop. 212, has filed a new legal action challenging the validity rate returned by Mohave, Coconino and Yuma counties. He claims the counties improperly removed certain voters' signatures and thus returned an incorrect validity rate.
Decisions made during three-day trial
Though McDowell could not rule definitively Thursday on a signature tally, he did clarify which formula should be used to determine the final count. Potentially more significant, he cleared up objections to a long list of petition circulators.
Over the course of a three-day trial, the judge, who is hearing the case without a jury, listened to arguments from attorneys over who could legally collect signatures and heard testimony from circulators.
The parties were mostly able to iron out objections to circulators through the use of a special master and stipulations throughout trial. But McDowell was left to sort out a list of legal questions around circulator eligibility.
That is critical. If someone is not legally qualified to circulate petitions, all the signatures that person collected are invalid — regardless of whether the signers themselves were registered voters and entitled to sign the petition. That can mean disqualifying one circulator strips Prop. 212 of dozens of the signatures needed to hit the 255,494 threshold.
Langhofer, attorney for the challengers, drilled in on mismatched, impermanent, or incorrect residential addresses on circulator registrations.
But McDowell sided with Barton, who argued that while there is a requirement for circulators to provide a "residential address,'' it need not be permanent. Instead, the judge said, it can be where someone is living temporarily while collecting signatures. That saved the signatures of 10 circulators.
Langhofer, however, had other issues. He queried circulators about past criminal records, whether they are legally "competent,'' and arguments that one circulator misrepresented the initiative's contents to a voter.
McDowell struck four circulators based on criminal backgrounds but found one circulator who was found incompetent by a criminal court was still eligible to collect signatures as her voter registration was still intact.
The misrepresentation claim centered on one circulator, Tyrone Crispell. He was captured on video, twice, by an ESA parent while claiming the measure would help fund college for low-income students.
In testimony to the court, Crispell claimed he misspoke in what he called the "ambush video,'' and said it did not represent his typical pitch to voters.
McDowell invalidated all of the several thousand signatures that he had collected.
"While Mr. Crispell denied that 'helping low-income students go to college' was part of his pitch to obtain signatures, the court does not find that credible,'' the judge wrote. "The June 2026 recording showed that statement was almost his entire pitch.''
The next step is that McDowell directed the secretary of state to follow a math formula — one set out in statute — making a computation extrapolating out those 5% formulas from all the counties to determine whether Prop. 212 supporters submitted enough qualified signatures.
'Highlights the possible effects of only part of it'
Only if the measure is cleared for the ballot does Thursday's Supreme Court ruling become relevant.
The issue before the justices was the wording chosen by the Legislative Council, composed of state lawmakers, who are tasked with providing an impartial explanation of what's in the initiative.
In this case, the Republicans who control the panel chose to say that if Prop. 212 is approved, it would allow the Protect Education Accountability Now Committee to sue families whose children receive vouchers for any violation of the new rules in the initiative. The legislators also wrote that even private schools could be sued.
But Timmer, writing for the unanimous court, said it was more likely than not that the actual initiative simply gives the committee the legal right to sue or intervene in any action to ensure the measure is enforced, as well as to go to court to defend Prop. 212 if it is challenged.
"The proposed phrasing is argumentative, speculative, and non-neutral (in the sense that it leans toward one side of the argument) in that it does not simply set forth the operative language in question but highlights the possible effects of only part of it,'' the chief justice wrote in ordering that explanation excised from the ballot brochure.
Timmer said even if there is a scenario that would allow lawsuits against parents and schools, "that is not the only interpretation of the initiative.''
"Thus, the analysis does not inform voters in a neutral manner of the full scope of what the (Protect Education) Committee would be authorized to do,'' she said.
