The Invalidation of the Invest in Education Act Initiative

By: Jorge Coss Ortega

2018 was an important year for public education in Arizona and many other states throughout the Country. In March of 2018, teachers across the State began the popular “Red for Ed” movement advocating for more funding for public education and raises in teachers’ salaries.[1]A month later, a proposed voter initiative, called the “Invest in Education Act,” was filed with the Secretary of State.[2]The Invest in Education Act would “increase K–12 education funding and raise certain income tax rates to support it.”[3]In the following months, the Invest in Education Committee collected approximately 270,000 signatures to support its initiative.[4]And although some of those signatures were invalidated, the Secretary of State ultimately determined that the Committee had filed a sufficient number of valid signatures to qualify it for the ballot.[5]Nonetheless, in late August, the Arizona Supreme Court invalidated the initiative petition and thereby prevented the initiative from reaching the November 2018 general election ballot.[6]But how exactly does a 100-word description invalidate a voter initiative, which is allowed under the Arizona State Constitution?

The Arizona State Constitution states that “the people reserve the power to propose laws and amendments to the Constitution and to enact or reject such laws and amendments at the polls, independently of the Legislature.”[7]Under this initiative power, ten percent of the qualified electors can propose any measure and fifteen percent can propose an amendment to the Constitution.[8]An initiative measure that will require mandatory expenditures of state revenues or allocates funding for a specific purpose must provide for an increased source of revenues sufficient to cover the cost of the proposal and the increased revenues may not be derived from the general state fund.[9]In any event, when an initiative petition is filled in accordance with these rules, the Secretary of State is required to put the initiative proposal on the official ballot at the next general election so that the voters may express their approval or disapproval at the polls.[10]

In Addition to these Constitutional requirements, the Legislature has enacted legislation that requires an initiative petition to provide “a description of no more than one hundred words of the principal provisions of the proposed measure.”[11]Under these laws, the initiative petition should also include a notice that the description may not include every provision contained in the measure and that the signatory has the right to read or examine the text of the measure before signing.[12]It is based on this statutory provision that the Supreme Court invalidated the Invest in Education Act initiative petition.[13]

The description placed on the Invest in Education Act petition provided:

 

The Invest in Education Act increases the classroom site fund by raising the income tax rate by 3.46% on individual incomes over a quarter million dollars (or household incomes over half a million dollars), and by 4.46% on individual incomes over half a million dollars (or household incomes over a million dollars); designates 60% of new funds for teacher salaries and 40% for operations; adds full day kindergarten and pay raises for student support services personnel as permitted fund uses; requires governing boards seek teacher and personnel input on fund use plans; defines teacher and student support services personnel.[14]

 

The Supreme Court determined that this description invalidated the initiative petition for two reasons.[15]First the court held that the petition was invalid because it did not include a primary provision which would significantly impact the State’s tax indexing.[16]According to the Court, this effect was a principal provision of the Act because it would impose tax increases on most taxpayers rather than only on the wealthiest, as the description made it appear.[17]

Second, the Court explained that the petition was invalid because it created a significant danger of confusion.[18]As mentioned above, the description stated that the Act would raise income tax rates of certain individuals by 3.46% and 4.46%.[19]The Court explained that this language was confusing because the Act did not increase the tax rates by 3.46% and 4.46% but rather by 3.46 and 4.46 percentage points.[20]Thus, the Act would increase the existing tax rates from 4.54% to 8% and 9% respectively.[21]The Court explained that this description creates a significant risk of confusion because it lends itself to two sharply different interpretations.[22]According to the Court, the omission of changes to the tax indexing and the confusing language about the magnitude of tax increases made it so that signers were not adequately informed about what they were signing. [23]

In his dissenting opinion, Chief Justice Bales states that the issues addressed could have been avoided by better drafting of the description. [24]Similarly, the majority acknowledges the sponsors did not need to describe the Act in great detail and that the confusion arose because of the specific description that was provided.[25]Therefore, in the future, a more general description of an initiative measure would be more strategic.

Ultimately, the Invest in Education Act initiative never reached the ballot.[26]However, under the Arizona State Constitution, the people can certainly try to pass the same measure in the future by proposing another initiative.[27]Moreover, if the people were successful in passing the measure as an initiative, the Legislature would not be able to repeal it and would only be able to amend it under very limited circumstances.[28]Hence, the Supreme Court’s recent decision certainly does not foreclose hopes of higher funding for public education and increases to teachers’ salaries in the State of Arizona. The last word on the matter is reserved for the people.

[1]Dale Russakoff, The Teachers’ Movement: Arizona Lawmakers Cut Education. Then Teachers Got Angry, The New York Times Magazine(Sep. 5, 2018) https://www.nytimes.com/interactive/2018/09/05/magazine/arizona-teachers-facebook-group-doug-ducey.html.

[2]Molera v. Reagan, 428 P.3d 490, 492 (2018).

[3]Id.

[4]Id.

[5]Id.

[6]Id.

[7]Ariz. Const. art. IV, Pt. 1 § 1(1).

[8]Ariz. Const. art. IV, Pt. 1 § 1(2).

[9]Ariz. Const. art. IX, § 1(2).

[10]Ariz. Const. art. IV, Pt. 1 § 1(10).

[11]Ariz. Rev. Stat. Ann. § 19-102(A).

[12]Id.

[13]Molera, 428 P.3d at 494.

[14]Id.at 492.

[15]Id.at 498.

[16]Id.at 496.

[17]Id.

[18]Id.at 497.

[19]Id.at 492.

[20]Id.at 497.

[21]Id.at 498.

[22]Id.at 497.

[23]Id.at 498.

[24]Id.

[25]Id.at 497.

[26]Id.at 498.

[27]Ariz. Const. art. IV, Pt. 1 § 1(1).

[28]Ariz. Const. art. IV, Pt. 1 § 1(6).

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