While much of the spirited debate about election legislation has centered on what happens after the polls close, several bills have been introduced to change the process of how and when a voter can receive and cast a ballot. And at least two new felony offenses would be created as a result.
A bill sponsored by Rep. Jake Hoffman (R-LD12) would make a felon out of any city or town clerk, or county recorder or other election official who provides an early ballot to a voter did not request it at least 93 days before an election, unless the voter is on the permanent early voting list.
Hoffman’s bill, HB2792, prohibits sending out an early ballot unless the voter complies with all early voting laws, including the request deadline. The intent, according to Hoffman, is to avoid situations seen in many states in the 2020 General Election when election officials mailed out ballots under the guise of avoiding COVID-19 contact at polling places.
Knowingly issuing unauthorized early ballots would be a Class 5 felony, subject to a prison sentence of up to 2.5 years, comparable to the sentence for facilitating prostitution and aggravated assault on a peace officer. Hoffman’s bill cleared the House last week on a 31-28 margin and is now under consideration by the Senate.
Another bill, SB1106, passed the Senate by a 16 to 14 margin last week. It makes it a Class 6 felony for a person who knowingly registers to vote in Arizona “solely for the purpose of voting in an election in this state and without the requisite intent to remain.”
SB1106 sponsored by Sen. J.D. Mesnard (R-LD17) would amend ARS § 16-182, which currently requires a voter in Arizona to be a resident of the state for 29 days preceding an election and to have been registered to vote for the same period. It is now a Class 6 felony for someone to register to vote or to actually vote if the person knew they were not entitled to do so.
But under Mesnard’s bill, a new voter who moves away at some undefined amount of time after an election could have their voting action challenges and then have to prove at trial what their intent was at the time they voted.
A Class 6 felony is punishable by up to two years in prison as well as loss of several rights, including the ability to possess or own firearms. Comparable offenses are witness tampering, possession of drug paraphernalia, and theft of property less than $2,000.
Sen. Michelle Ugenti-Rita (R-LD23) has had success with several election-related bills, including SB1002 which requires election officials to ensure that the envelopes used by voters to return early ballots do not reveal the voter’s political party affiliation. Her bill easily cleared the Senate on a 20 to 9 margin and is expected to be taken up by the House on Tuesday.
On Monday, the Senate transmitted SB1713, also by Mesnard, to the House on a 16 to 14 margin. The bill adds steps to the vote-by-mail process, so a voter cannot simply sign the affidavit on the ballot envelope and put it in the mailing envelope with the ballot.
SB1713 would also require the voter to include their date of birth on the affidavit and write their driver’s license or an acceptable government-issued ID number on the affidavit before placing it and the ballot in the mailing envelope. There would be a more complicated process for voters who do not have an acceptable government ID card.
If the bill passes, failure to follow any of the new affidavit requirements would cause the submitted ballot to be rejected.
Meanwhile, the House approved a bill last week that requires voters whose polling place uses paper ballots be offered a “ballot privacy folder” when given their ballot, although they do not have to use it. The bill, HB2362 by Rep. John Kavanagh (R-LD23), is now assigned to the Senate Committee on Government.
A Senate Concurrent Resolution that could terminate Gov. Doug Ducey’s March 11, 2020 declaration of emergency will be considered on Monday by the full Senate.
Currently under state law, a non-war state of emergency can only be ended by proclamation of the governor “or by concurrent resolution of the legislature declaring it at an end.” As Ducey has not put forth a plan for termination the current COVID-19 state of emergency any time soon, Sen. Michelle Ugenti-Rita (R-LD23) seeks to end it with SCR1001.
According to SCR1001, Arizona’s government “was established to protect and maintain individual rights and must frequently return to these principles to secure these rights and the perpetuity of our free government” but that Ducey’s year-old declaration and executive orders have “drastically restricted and suppressed the individual freedoms and economic prosperity of Arizonans.”
SCR1001 cites the fact Arizonans have been “personally responsible and have exceeded expectations in slowing community spread through their own individual behaviors and actions, accepting personal restrictions as a civic duty to prevent disease transmission.”
If SCR1001 clears its Third Reading on Monday it will be transmitted to the House. It would take immediate effect upon passage in the House.
However, legislators have been forewarned by Arizona Attorney General Mark Brnovich on Feb. 17 that Ducey could simply declare a new state of emergency, and even re-institute prior measures, “so long as the conditions for the existence of a state of emergency” are satisfied in accordance with the emergency powers statue.
While Ugenti-Rita’s effort would end the current state of emergency, another Third Reading is slated for Monday for SCR1010 which would require a governor to call a special session of the Legislature at the same time a state of emergency declaration is issued.
But even if Sen. Kelly Townsend’s SCR1010 passes out of the legislature, it must still be approved by voters before the changes to Arizona’s emergency powers law take affect. The Secretary of State would put the issue on the ballot for the next general election.
In fact voters could be asked to choose between Townsend’s immediate legislative special session option and one which gives a governor a few days before needing to call a special session after issuing an emergency proclamation.
SCR1003 sponsored by Sen. Warren Petersen (R-LD12) was approved last month by the Senate. It would terminate a governor’s state of emergency 30 days after issuance unless extended by a Concurrent Resolution of the Legislature. It also requires a legislative session to be called within 10 days if the legislature is not already in session.
Petersen’s SCR1003 has already been transmitted to the House where it awaits committee assignment by the House Speaker Rusty Bowers. As with SCR1010, it would be up to Arizona’s voters whether or not to make the change to a governor’s current emergency powers.
Gov. Doug Ducey has issued a lot of statements during his time in office, but the one he made Friday to allow most businesses across Arizona to reopen without capacity restrictions may be the most welcome of all.
“We’ve learned a lot over the past year,” Ducey said in his announcement. “Our businesses have done an excellent job at responding to this pandemic in a safe and responsible way. We will always admire the sacrifice they and their employees have made and their vigilance to protect against the virus.”
For businesses, physical distancing and mask protocols must still remain in place. In addition, Ducey will continue to order that mayor, counties, and municipalities cannot implement “extreme measures” over and above the state’s order.
Ducey and other state officials point to seven weeks of declining new COVID19 cases in Arizona, and the distribution of more than 2 million vaccines. Friday’s announcement that capacity restrictions will be removed for restaurants, gyms, theaters, water parks, bowling alleys, and bars providing dine-in service came just days after the Arizona Free Enterprise Club called for a reopening sooner than later.
The AFEC’s March 2 statement noted Arizonans were on “day 351” of what was announced at the time as a 15-day closure effort to show the spread of COVID19, but instead many businesses were still under very restrictive capacity limits…”
Several bills introduced this legislative session aimed to help Arizonans recapture a sense of normalcy by getting kids back to school and employees back to work. Rep. Bret Roberts (R-LD14) has sponsored or co-sponsored several of those bills, including one that defines the limits of a governor’s emergency powers.
Roberts said he is glad Ducey made the announcement but is mindful that more is needed.
“I would prefer we repeal it all in one fell swoop as other states are doing,” Roberts said. “However, I am happy to see were moving in that direction albeit incrementally. It’s a good first step…but we need to do more.”
Ducey’s new order will likely also have a huge impact on Arizona’s struggling tourism industry. He will now allow Major League Baseball and other major sports organizations to seek approval from the Arizona Department of Health Services of a crowd-public health plan that demonstrates implementation of safety precautions and physical distancing.
“Today’s announcement is a measured approach; we are not in the clear yet,” Ducey added. “We need to continue practicing personal responsibility.”
The Arizona Supreme Court announced Thursday it will hear oral arguments on April 20 in an attempt to quickly address whether a lower court judge should have put Proposition 208 on hold pending a trial on the measure’s constitutionality.
“Small business owners are already leaving the state due to this poorly crafted measure, and we are hopeful that the Supreme Court will do the right thing and stop this illegal law from going into effect before more damage is done,” Scot Mussi, President of the Arizona Free Enterprise Club, said after the announcement.
Prop 208 mandates a 3.5 percent surcharge tax on income above $250,000 (single filers) or $500,000 (joint filers) in addition to whatever regular income tax is due. The Arizona Free Enterprise Club, Senate President Karen Fann, House Speaker Russell Bowers, and others impacted by the surcharge are asking the Supreme Court to invalidate the measure approved in November with less than 52 percent of the vote.
Attorneys affiliated with the Goldwater Institute, including Timothy Sandefur, are among those representing the plaintiffs. He welcomed Thursday’s news that oral arguments will be held in less than seven weeks on the plaintiff’s previously rejected request for a temporary restraining order.
“Today’s order shows that the Supreme Court understands how important these constitutional challenges are,” said Sandefur, the organization’s vice-president of litigation. “Rather than having the case go through the slower procedures for appeals, the Court announced that it will hear the case right away.”
In February, Judge John Hannah of the Maricopa County Superior Court refused to put Prop 208 on hold pending a trial on several constitutional challenges. His ruling requires the Arizona Department of Revenue to prepare to collect the surcharge, although the judge noted the funds could be refunded if Prop 208 is later invalidated.
Among the legal issues is whether a tax surcharge is simply a tax increase in disguise, and if so, whether it can be enacted without the same two-thirds majority required when the legislature wants to hike taxes. That two-thirds requirement was added to the Arizona Constitution in more than 20 years ago.
“But you can’t override the Constitution except by a constitutional amendment, and Proposition 208 isn’t a constitutional amendment,” said Sandefur, who appealed Hannah’s denial of the restraining order to the Arizona Court of Appeals per normal court rules. He also took the unusual path of simultaneously seeking expedited consideration from the Supreme Court.
Among those who encouraged the Supreme Court to hear the matter was Gov. Doug Ducey, who campaigned against Prop 208 as a “crippling” tax increase with no guarantee of much of the funds would reach teachers. Estimates that $800 million or more in additional annual K-12 funding would be generated under Prop 208 have been recently called into question in light of post-COVID income impacts.
The oral arguments proceeding will be closed to in-person attendance, but a livestream will be available via www.azcourts.gov/AZSupremeCourt/LiveArchivedVideo.
Two pieces of state legislation aimed at protecting gunowners’ rights made it out of the Senate on Wednesday, and it is now up to House Speaker Rusty Bowers to assign the bills to House committees.
SB1382 deems stores which sell firearms, ammunition, or components of either as “an essential business” during a state of emergency. The bill cleared the Senate Judiciary and Senate Rules committees in early February and passed on the Senate Floor by a 16 to 14 vote along party lines.
The bill impacts ARS § 26-303 under Military Affairs and Emergency Management, which currently guarantees emergency powers shall not allow the imposition of additional restrictions on the lawful possession, transfer, sale, transportation, carrying, storage, display or use of firearms or ammunition or firearms or ammunition components.
Under SB1382, the statute would be amended to add one sentence that specifies stores that sells firearms, ammunition, or components of such are essential businesses “and there may not be any restrictions imposed on the store’s normal operations” during a state of emergency.
The legislation would not require a store’s primary source of revenue to come from gun or ammunition sales, thus allowing businesses which sell other retail items in addition to firearms to remain open. One such business that would benefit from the legislation is Lilly’s Tombstone Memories, a specialty gift store on historic Allen Street in Tombstone.
If SB1382 had been the law when COVID-19 first hit, owners Lillian and Bob Hritz would have been able to remain open without fear of retribution against their business license. They, like a number of gun store owners, saw an increased customer demand starting last March but due to Gov. Doug Ducey’s executive orders many had to close.
Among those supporting the bill are the Republican Liberty Caucus of Arizona and the Arizona Citizens Defense League.
Another gun rights bill passed out of the Senate on Wednesday, this one by a 17 to 13 vote.
SB1328 -known by its working title of the Second Amendment Firearm Freedom Act- would declare any federal act, law, treaty, order, rule, or regulation to be null and unenforceable in Arizona if the action violates the right to bear arms as provided by the Second Amendment of the U.S. Constitution or by the Arizona Constitution.
The bill sponsored by Sen. David Gowan (R-LD14) would also prohibit the State and any of its political subdivisions from using personnel or financial resources to enforce, administer or cooperate with any federal act, law, treaty, order, rule, or regulation deemed in violation of the U.S. or Arizona Constitutions.
But unlike many bills, SB1328 as currently written includes a provision putting teeth into the new law by making the impairment of a citizen’s right to bear arms a Class 1 misdemeanor for the first offense. Each subsequent offense would be a Class 6 felony, and a judge would be required to impose the maximum fine and sentence allowed by law for anyone convicted of such conduct.
The bill also contains a provision allowing citizens to sue any “entity, agency, bureau, employee or official of Arizona or a political subdivision of Arizona” that engages in such infringement for judicial relief, damages, and attorney fees. However, it excludes persons working under the authority or orders of a government entity, agency, bureau, employee or official from the outlined prohibitions.
