Judge's ruling puts AZ vouchers reform measure in doubt; now up to high court

A trial judge concluded that, based on a check of petitions and a random sampling of signatures, Proposition 212 will fall about 10,000 short of the 255,949 valid signatures needed to take the issue to voters in the November general election.

Only thing is, the Arizona Supreme Court is considering and has yet to issue a final ruling on whether the judge, Maricopa County Superior Court Judge David McDowell, used the right methodology in reaching his decision.

And supporters of the Protect Education Now Act, which proposes various reforms to the 15-year-old program, said any claims that the measure is dead are premature.

"Do not believe the misinformation,'' said Olivia Fierro, communications manager for the committee behind Prop. 212.

"There are still many questions that need to be resolved,'' she said. "As of right now, the Protect Education Act is still on the ballot.''

It all comes down to math. 

Jim Barton, an attorney for educators and the state teachers union who support the initiative, claims the formula that the trial judge is using could strike valid voters from the signature count. Initiative opponents, however, are counting on the justices using the equation accepted by the trial court.

Barton has another argument, as well.

He is telling the justices that if there is any question about the formula to be used, "doubt should be resolved in favor of counting the signatures and placing the measure on the ballot,'' and giving voters the last word.

If passed, Prop. 212 would limit enrollment in the ESA program, commonly called the vouchers program, based on parental income; prohibit spending on luxury goods; enact academic testing requirements; and strengthen security and safety requirements for educators and private schools paid through the program.

Supporters of the initiative said the program, expanded in 2022 to allow all students to get about $7,500 each per year for private and parochial schools or for home schooling, is taking dollars away from the public school system. The program has now grown to more than 100,000 students with an annual price tag of more than $1 billion.

They also cite news reports of parents using the funds for some expenses such as lingerie, jewelry, and trips to out-of-state theme parks they say are clearly non-educational.

To qualify for the ballot, 255,949 valid voters had to sign petitions. As of the July 2 deadline, the Protect Education Accountability Now committee turned in 415,438 signatures.

The most recent campaign finance reports said the group spent more than $7.2 million. Abut $6.5 million came from the National Education Association and about $500,000 from the Arizona Education Association.

Opponents of the act swiftly sued, claiming the committee used a long list of ineligible circulators to collect signatures.

McDowell ultimately agreed that was the case with at least some circulators, throwing out the petitions they collected and all the signatures on them. But that still left more than enough signatures.

The last step was to review the reports of the 15 county recorders who each were given a random sample of 5% of the signatures from their own counties. McDowell then laid out a formula to calculate the final count when the courts had reports from all the counties and a sound statewide validity rate.

Under that formula, Kory Langhofer, attorney for voucher advocates and parents, said the initiative would fail if the statewide validity rate fellow below 78.3%.

Revisions from some counties could shift the rate slightly.

But Langhofer claimed the average statewide validity rate now sits around 75%. And, if the court accepts the calculations using the formula agreed to by McDowell, the petition drive will fall short by about 10,000 signatures.

The American Federation for Children and the Arizona Free Enterprise Club, two organizations behind the challenge to the initiative, were quick to declare victory on Monday.

Scot Mussi, president of AZFEC, called it a "major victory for Arizona parents, students, and the integrity of our elections.''

Tommy Schultz, CEO of AFC, said his organization made a "substantial six-figure investment'' in the legal challenge and was prepared to spend more than $6 million "to defend this program and defeat the unions.''

"AFC is proud to have fought on every battlefield to save the Arizona ESA program from calamity, and we celebrate alongside parents across Arizona at today's news that the unions are below the amount of valid signatures needed to qualify for the ballot in November,'' Schultz said in a press release.

House Speaker Steve Montenegro, a Goodyear Republican who has been a supporter of the ESA program, joined in, claiming "the teacher unions came after Arizona parents and lost.''

But, that victory lap is a bit premature. The Arizona Supreme Court has yet to make a final decision on whether the formula that delivered the alleged final blow to the Protect Education Act is constitutionally valid.

Much of that comes down to the counties' review of the random samples of signatures and return of a validity rate. The average validity rate across counties is then applied to the final count of valid signatures.

But in past Arizona Supreme Court rulings, justices found the method can improperly "double-count'' invalid signatures and remove valid signatures from the final count in the process. Barton is telling the justices that the current calculation could invalidate duplicate signatures twice, skewing the final tally.

He argues the only way to ensure each invalidated duplicate leaves at least one valid signature from a voter is to have counties check line-by-line. But with a Thursday ballot printing deadline, Barton acknowledges the counties cannot do so.

So, Barton asks the court to allow the measure to go to voters by declining to factor duplicate signatures into the final count, leaving the act with at least 316,993 valid signatures — enough to qualify for the ballot.

Initiative foes have their own argument.

In a brief to the court, Langhofer and co-counsel Thomas Basile claimed an alternative formula would allow the court to add double disqualified signatures back in.

Basile wrote Barton's proposal "would qualify an initiative for the ballot through a petition that has been proven in court to contain fewer than the constitutionally prescribed minimum number of valid signatures from qualified electors.''

The two sides did agree on one thing. In a joint statement to the court, they said this all comes down to the formula.

They acknowledge that if the final tabulation treats duplicate signatures as valid and applies the validity rates that each county reported, the measure qualifies for the ballot. If the final count invalidates duplicate signatures, credits back duplicates found in county recorder reports and then applies the validity rate, it does not.

The Arizona Supreme Court has declined to say when it will rule. But the justices have acknowledged the need for action ahead of the ballot printing deadline on Thursday.