Today the 9th Circuit Court of Appeals affirmed the denial of a preliminary injunction sought with respect to Arizona’s “strikeout” law, which requires a court to invalidate any initiative petition sheets collected by a circulator who is subpoenaed for trial and does not appear.Â The blog has previously covered the strikeout litigation here.
Today’sÂ order expressed considerable skepticism that circulators suffer any harm whatsoever by the law:
[The] circulators cannot consider being called to testify âan injury,â as they have already agreed to consent to the stateâs jurisdiction in any action pertaining to signatures they collected, pursuant to a law they do not challenge. See A.R.S. Â§ 19-118(A)â(B). Thus, the Strikeout Law imposes no new burden on them, only a new penalty for failure to appear. Any injury from signatures being stricken, on this record, is also quite speculative, as it would occur only if there was a court challenge, and if a circulator were properly served but failed to appear, and if the loss of that circulatorâs signatures caused the initiative to fail to qualify for the ballot.
The Court also noted that the Plaintiffs’ litigation strategy backfired by waiting so long to bring the lawsuit:
The likelihood of imminent and irreparable harm is further undermined by the length of time between the enactment of the Strikeout Law in 2014 to filing suit in July 2019, thus allowing the law to remain in place for multiple election cycles. This delay âimplies a lack of urgency and irreparable harm.â
The case will likely proceed in the District Court on the merits, but a final decision and appeal are years away.Â The key takeaway is that the strikeout law will be in full force this July when initiative litigation commences.