UPDATED: Initiative Lawsuit Seeks to Cure Alleged Constitutional Violation using Potentially Unconstitutional Remedy

Last week, several initiative campaigns filed twin lawsuits in the Arizona Supreme Court and Arizona Federal District Court alleging unconstitutional burdens on their ability to campaign, and therefore sought access to the Secretary of State’s “E-Qual” system to electronically collect initiative petition signatures for the next few months. It makes sense why the campaigns would seek access to a system presently available to only candidates.  But the Arizona Constitution likely precludes the system from being expanded into the initiative context.

E-Qual currently allows registered voters to input their information in the Secretary’s website and select the candidate petitions they are authorized to sign. Prior to 2019, for voters who registered to vote through MVD, the E-Qual system grabbed the voter’s signature image from MVD records and inserted that signature (along with the voter’s name and address) into a virtual petition sheet.  At that time, even though the Secretary’s statewide voter registration database likewise possessed the signature images for voters who registered using a traditional paper registration form, the E-Qual system had no technological capability to grab that image. As a result, that class of unlucky voters effectively lacked access to the E-Qual system.

In 2019, presumably in conjunction with implementing a new statewide voter registration system, the system was modified to no longer be reliant on the MVD system.  However, as a corresponding trade-off, it appears that the E-Qual system no longer snips any signature images whatsoever and instead places “/S/ FIRST MIDDLE LAST NAME” typed into the petition.  This change appears to comply with Title 16 because the statute authorizing E-Qual applies [“n]otwithstanding any other statute in this title.”  Moreover, it is a welcome move by the Hobbs administration because it greatly expands the number of voters eligible to participate in E-Qual.

But this poses at least two problems in the initiative context. The Arizona Constitution imposes uniquely strict requirements on voters to sign an initiative petition in the “presence” of the circulator, which explains why E-Qual cannot (or at least cannot easily) be extended from candidate petitions to initiative petitions. It is entirely unclear who would be the “circulator” in an electronic context, and even if the circulator could be determined, the voter would not be signing in the circulator’s “presence.”

But the Secretary’s recent change to E-Qual poses another challenge in the initiative context.  The Constitution requires that “each sheet contain[] petitioners’ signatures” and a verification that “the names on said sheet [were] signed.”  One can make a compelling argument that an electronically produced “/S/ FIRST MIDDLE LAST NAME” does not constitute a “signature” under the Constitution.  The framers clearly contemplated that a wet signature would be utilized in the initiative context, and that a signature would be compared to the voter’s registration signature.

If true, then granting further access to E-Qual to cure an alleged constitutional violation might wind up being an unconstitutional remedy. See Gill v. Whitford, 138 S. Ct. 1916, 1929, (2018) (“[C]ounsel for the plaintiffs argued that this Court . . . should exercise its power here because it is the ‘only institution in the United States’ capable of ‘solv[ing] this problem.’ Such invitations must be answered with care. ‘Failure of political will does not justify unconstitutional remedies.’ Clinton v. City of New York, 524 U.S. 417, 449 (1998). Our power as judges to ‘say what the law is,’ Marbury v. Madison, . . . [is] grounded in and limited by the necessity of resolving, according to legal principles, a plaintiff’s particular claim of legal right.”).

There are certainly good policy reasons why E-Qual should be utilized in Arizona campaigns. But for constitututional reasons, that may not be possible for initiatives.

This post was updated at 3:30 p.m. on April 10, 2020

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