AZ Federal Court Deals Crushing Blow to Lawsuit Aimed at Protecting 2020 Initiative Measures

On December 16, 2019 the Arizona Federal District Court issued an order dismissing First and Fourteenth Amendment challenges to Arizona’s initiative petition “strikeout” law and declined to enter a preliminary injunction enjoining the law. Thus the “strikeout” law will likely remain in play for the 2020 election cycle and continue to act as the principal headache for initiative groups seeking to qualify measures for the ballot.

A.R.S. § 19-118(E) requires a court to invalidate initiative petition signatures collected by a registered circulator who was subpoenaed for trial for a challenged ballot measure but fails to appear or produce the requested documents in court. The Arizona Supreme Court already upheld the constitutionality of the “strikeout” law last year in Stanwitz v. Reagan (Outlaw Dirty Money initiative). Nonetheless, NextGen Climate Action (Tom Steyer’s advocacy group) and various straw plaintiffs challenged the “strikeout” law in federal court earlier this year.

The “strikeout” law is probably the most effective tool used by litigants in recent years to challenge controversial initiative measures. In effect, the “strikeout” law requires initiative backers to have a post-filing game plan in place to ensure their professional petition circulators are available to return for trial in August of the general election year. By implication, this places a premium on either hiring local circulators who are more readily available to testify or spending exorbitant sums to transport and coordinate the logistics for their more itinerant circulators to return to Arizona.  But Judge Bolton’s order throws cold water on any hopes that these defining characteristics of election litigation will wither away for the 2020 election cycle.

DECEMBER 17, 2019 UPDATE: the plaintiffs appealed Judge Bolton’s decision to the 9th Circuit Court of Appeals.

JANUARY 3, 2020 UPDATE: the plaintiffs filed a Motion for Reconsideration in the District Court.

JANUARY 10, 2020 UPDATE: the Court issued an Order denying the plaintiffs’ Emergency Motion for Stay Pending Appeal.

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