Ruling: Arizona ballot measure description illegal

Maricopa County Superior Judge David McDowell said that Fontes is required by law to prepare language describing what would be the effect on the state of each of the measures going to voters in November. That description goes on the actual ballots that are mailed to voters or given to them when they show up at polling places.

McDowell acknowledged that Prop. 145, which is designed to constitutionally protect forever the ability of children in military families to get Empowerment Scholarship Accounts, also has a provision that, if approved, nullifies any other measure in its entirety that affects those vouchers.

But the judge said that Fontes broke the law when his description said that approval of Prop. 145 would "nullify Proposition 212.'' That separate ballot measure imposes spending and income limits on the voucher program.

Prop. 145 is billed as providing some protection against any effort to take away voucher funds from children of military families.

Voucher supporters acknowledged, however, that they added what some have called a "poison pill'' to the measure. That verbiage spells out that if Prop. 145 is approved, any other law that would remove voucher dollars from those children is automatically declared void — in its entirety.

What makes that significant is that one of the provisions in Prop 212 would prevent all families — including those from military families from saving the voucher dollars they do not spend each year to instead pay for college.

That means if Prop. 145 is approved, it voids not just the parts of Prop 212 dealing with "banking'' voucher funds but everything else. And those range from prohibiting voucher dollars from being spent on non-educational items like jewelry and trips to amusement parks to disallowing vouchers for students whose parents make more than $150,000 a year.

McDowell, in his new ruling, did not address the motives of the voucher supporters who crafted Prop. 145 with that poison pill. And he said it's not his role to determine whether Fontes proposed "the best or most reasonable ballot description.''

What is the issue, McDowell said, is whether the secretary's description "complies with the statutes and is not false nor misleading and provides necessary and appropriate information to the voting public.'' And the judge said the language from Fontes does not pass the test.

The key, said McDowell, is Fontes is supposed to describe the effect of ballot measures on "existing law.'' And because Prop. 212 is not now existing law but simply a proposal, the judge said any reference to how Prop. 145 would affect it is illegal.

"It may or may not become a law,'' McDowell wrote. "But that determination isn't made until all votes are cast.''

More to the point, he said, if Prop. 212 fails, it doesn't become law and, therefore, Prop. 145 has no effect on it.

McDowell ordered Fontes to recraft the description, this time leaving out any reference to Prop. 212.

The new order, however, may not be the last word. Calli Jones, spokeswoman for Fontes, said he is weighing whether to seek Supreme Court review.

"We stand by our decision to include the provision in the ballot language detailing the impact of a 'yes' vote on the citizen's initiative,'' Jones said.

"Our statutory charge was to accurately summarize the impact of the referral for voters,'' she continued. "And the referral has specific provisions in it that would nullify such an initiative (Prop. 212) so we listed them in the ballot language.''

The whole legal fight could end up moot.

A different judge has previously ruled that Prop. 145 cannot go on the ballot because it links two distinct issues, illegally forcing voters into a ``take-it-or-leave it'' position. That decision, however, is being appealed to the Arizona Supreme Court.