PHOENIX — Voucher supporters are asking the Arizona Supreme Court to put a measure with a "poison pill'' to kill reform of the Empowerment Scholarship Account program back on the November ballot after it was removed by a trial judge.
Attorney Thomas Basile does not dispute that there are two separate provisions in Proposition 145 that would amend the Arizona Constitution.
One would forever protect the ability of children in military families to get vouchers of taxpayer dollars to attend private and parochial schools and for homeschooling to save up the money not spent each year for college.
The other would say that any law that is passed that would undermine that right is entirely void — and not just the provisions dealing with military families. That is specifically aimed at Proposition 212 which asks voters to make major changes in the voucher program — including ending that banking permission, not just for military families but all recipients.
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But Basile, who represents House Speaker Steve Montenegro and Senate President Warren Petersen, is telling the justices there's nothing wrong with that.
He said they're just two parts of the same plan to protect those families. Basile is asking the justices to overturn a ruling last month by Maricopa County Superior Court Judge Joseph Kreamer finding the measure constitutionally flawed.
The trial judge ruled that GOP lawmakers cannot combine the two provisions into a single take-it-or-leave-it proposal, one specifically protecting military families and the other to take out every other voucher measure — now and forever — that touches on the subject.
Basile said the judge is missing the point.
He said the entire purpose behind Proposition 145 is to forever protect those scholarship accounts for military families.
Yes, he conceded, it is true that lawmakers could have put only that provision into what they are asking voters to adopt. And, if approved, it would preclude such future attempts.
But Basile argued there is nothing wrong with lawmakers also including language that also entirely voids any other measure with such a provision.
Anyway, he said, even if Prop. 145 is approved — and even if it nullifies Prop. 212 if voters also approve that — none of that precludes future efforts by groups like the Arizona Education Association and Save Our Schools to make changes to the voucher program. Instead, they would just have to avoid provisions that affect military families.
What Basile does not mention is that the backers of Prop. 145 acknowledged that they crafted it as a "poison pill'' to undermine Prop. 212, regardless of whether it is approved in November.
That measure does far more than affect banking of voucher dollars.
It seeks to further define in law what items serve an educational purpose and, more to the point, what items do not. There even is a list of forbidden items, ranging from household furniture and motor vehicles to jewelry, lingerie and admission to amusement parks.
It also would deny vouchers to children in families earning more than $150,000 a year.
Basile said the court should ignore as irrelevant any effect Prop. 145 would have on Prop. 212.
And even if that's true?
"So what?'' Basile said.
"So even if HCR 2048 (the legislative designation before it was numbered Prop. 145) would effectively preempt all ESA regulations, HCR 2048 still would comprise a unified pronouncement on the state's constitutional understanding of parents' and students' rights with respect to school choice funding,'' he said. And that, Basile said, makes putting the two issues together legal.
But to win the appeal to the Supreme Court, Basile also needs to overcome some other flaws that Kreamer found with the ballot measure when he knocked it off the ballot.
For example, the judge questioned the legality of any effort by lawmakers to preemptively kill future initiatives, requiring courts to void entire otherwise-legal measures approved by voters just because one section runs afoul of a constitutional provision.
Generally speaking, courts have the power of severability when dealing with a measure that has multiple provisions.
If a single provision of any law is determined unconstitutional, then judges void that section — and that section only of the specific law at issue — and allow other, unrelated provisions to take effect. That is true whether the measure is enacted by the legislature or voters.
But Kreamer said that's not the case with how Prop. 145 is crafted.
"Instead of applying only to the bill being proposed, it would invalidate future legislation,'' the judge continued. And he said it affects constitutional provisions dealing with the power of the court "because it would potentially force the judiciary to invalidate laws that do not violate a constitutional right.''
"It concerns key aspects of judicial review, legislative power, and the separation of power between those branches,'' Kreamer wrote.
Basile, however, said courts do not have a freestanding power to decide whether to sever illegal portions of a law and leave the rest.
"Courts employ severability as an interpretive tool, not an exercise of autonomous will,'' he said. And he said the fact that Prop. 145 includes language voiding all of Prop. 212 does not run afoul of the law.
No date has been set for the justices to take up the case.
Howard Fischer is a veteran journalist who has been reporting since 1970 and covering state politics and the Legislature since 1982. Follow him on X, formerly known as Twitter, Bluesky, and Threads at @azcapmedia or email azcapmedia@gmail.com.
