Judge: Lawmakers wrote illegally misleading summary of vouchers initiative

In the new decision, Maricopa County Superior Court Judge Daniel Martin said it was wrong of the Legislative Council to try to tell voters that if the Proposition 212 initiative is approved, that will give the initiative's organizers the right to go to court and sue families and schools participating in the education vouchers system if they violate any of the new rules the ballot measure would create.

That is not true, Martin concluded. So he ordered the Republican-controlled council to rewrite the description without the misleading language, and do so by Aug. 21.

A spokesman for House Speaker Steve Montenegro, who chairs the council, said lawyers for the Republican-controlled Legislature are "reviewing the ruling.''

The victory for the Protect Education Accountability Now Committee was only partial. Martin rejected several other complaints that what the council crafted is unfair.

But the ruling is significant because the explanatory wording the council adopts about ballot measures goes out in a brochure sent to the homes of all 4.3 million registered voters in Arizona.

The law requires the explanation the council writes for that brochure to be impartial, with the idea being it should be an honest explanation of the effect of any ballot measure, regardless of claims by proponents and opponents.

This dispute is over Prop. 212, which seeks to make major changes to what is known as the Empowerment Scholarship Account program, which provides vouchers of tax dollars to students to attend private or parochial schools or for home schooling.

The measure seeks to impose new oversight, including listing the kinds of items that can and cannot be purchased with voucher dollars. It also would deny vouchers to students from families making more than $150,000 a year.

One provision in Prop. 212 says that if voters approve the measure, the Protect Education committee has the legal right to sue or intervene in any action to ensure it is enforced. It also says if anyone else sues to invalidate any provision of the initiative, the committee is entitled to go to court to defend it.

But Republicans on the Legislative Council voted to put language in the brochure contending the Protect Education Committee would have "the power to sue the families and private schools that participate in the program for any violations of the proposition.''

Attorneys for the committee said that's false.

"The analysis manufactures a threat found nowhere in the initiative,'' they told Martin. They said the council's wording tells those with children in the ESA program that if they vote for Prop. 212 it "would expose them to suit by the sponsoring committee.''

That "provocative phrasing" is not permitted in "impartial'' explanations, the lawyers said.

Martin said courts generally defer to how the Legislative Council crafts these explanations.

But he said that doesn't give its members free rein to just come up with wording that doesn't reflect what's actually in the ballot measure. That's exactly what happened here, the judge said.

"The language employed by the Legislative Council is sufficiently partisan to violate (election law) and therefore must be stricken or revised,'' the judge wrote.

That order to the council comes even as voucher supporters are in another courtroom trying to knock Prop. 212 off the ballot entirely.

Attorneys for challengers in that case contend that many people who gathered the more than 421,000 signatures to put the measure on the November ballot were not legally entitled to be circulators.

If enough circulators' petitions are invalidated, the petition drive could fall short of the 255,949 valid signatures needed to put the issue to voters in November.

That case is in front of Maricopa County Superior Court Judge David McDowell. He is expected to rule by the end of this week.