By Matthew Holloway |
A Maricopa County Superior Court judge ordered Arizona election officials Tuesday to rewrite the descriptive title and “yes” and “no” statements for Proposition 212. The judge found that the current version omits substantial changes to enforcement and government oversight and misleadingly describes Arizona’s Empowerment Scholarship Account (ESA) program as a “school voucher program.”
Judge Julie Ann Mata enjoined Secretary of State Adrian Fontes from using the current language on the official ballot or in the publicity pamphlet. She also issued a writ directing Fontes and Attorney General Kris Mayes to revise the language in accordance with state law and her ruling.
The court left the exact wording to Fontes and Mayes under their statutory drafting and approval authority. Mata declined to order the state to adopt replacement language proposed by the plaintiffs and denied their request for attorneys’ fees and costs.
Daryl Groves and the Arizona Free Enterprise Club (AFEC) filed the case against Mayes and Fontes on July 28. Protect Education, Accountability Now, the political committee sponsoring Proposition 212, participated as a friend of the court in support of the challenged language. The defendants argued that the wording fairly summarized the measure and complied with A.R.S. § 19-125(D).
AFEC called the order a “major victory for Arizona school choice” and said, “Arizona voters deserve the truth.”
Mata wrote that the court’s review addressed the accuracy of the ballot language and left the policy merits of Proposition 212 to voters.
The version posted by the Secretary of State before the ruling states that Proposition 212 would limit ESA eligibility to families earning $150,000 or less per year, with specified exceptions; prohibit spending on noneducational and luxury items; impose qualifications on tutors; require accreditation or testing for participating schools; and generally return unspent annual ESA allocations to the state.
The full initiative also gives the sponsoring committee or its designee standing to initiate or intervene in litigation to enforce or defend the measure. Mata found that authority to be a substantial change that the ballot title or description must disclose. She found that the existing phrase “other rules and restrictions” failed to adequately inform voters about it.
Mata also found that the “yes” statement omitted a substantial change to two existing statutory limits on government control or supervision of nonpublic schools and homeschools. Proposition 212 would amend those provisions to permit control or supervision provided elsewhere in the ESA chapter for schools and homeschools receiving ESA funds. The court did not rule on the constitutionality of that proposed change.
The judge separately found the phrase “school voucher program” misleading. She cited Arizona decisions that invalidated two voucher programs and later upheld the ESA program under a different legal structure. Mata wrote that using the phrase could lead voters to treat the legally distinct programs as equivalent.
The court rejected one of AFEC’s arguments. The group argued that describing the $150,000 income limit as “adjusted for inflation” could mislead voters because the initiative caps the annual adjustment at the lower of 2% or the change in the gross domestic product price deflator. Mata found the existing wording provided appropriate information and held that omitting the precise formula was not misleading.
In a separate decision, Maricopa County Superior Court Judge Daniel Martin also ordered changes Tuesday to a separate piece of voter information concerning Proposition 212. The judge directed the Arizona Legislative Council to revise its analysis for the publicity pamphlet by Aug. 21.
Martin found the Council’s statement that the initiative committee would have “the power to sue the families and private schools that participate in the program for any violations of the proposition” sufficiently partisan to violate state law. He ordered the Council to strike or revise the language by Aug. 21. The Council’s adopted three-page analysis is governed by a separate law requiring an impartial explanation for the publicity pamphlet.
Mata’s case concerned the shorter ballot title and “yes” and “no” statements prepared by the Secretary of State and approved by the Attorney General.
Proposition 212’s ballot qualification remains the subject of separate litigation over petition circulators and signatures. That case, Clark v. Fontes, is a Goldwater Institute and AFEC-backed challenge to the initiative’s petition circulators and signatures. Maricopa County Superior Court Judge David McDowell is expected to rule on the matter by the end of the week. The amended complaint seeks to prevent the initiative from appearing on the November ballot.
Matthew Holloway is a senior reporter for AZ Free News. Follow him on X for his latest stories, or email tips to Matthew@azfreenews.com.
