CORRECTION: The bill still needs to be considered in the Senate. The “win” is confined only to the House vote as of 9:30 a.m., on June 29.
Back in January, on the second day of the legislative session, Sen. Warren Petersen and 27 other legislators introduced Senate Concurrent Resolution 1003 in hopes of garnering voter support to rein in a governor’s emergency powers.
It took more than five months, but the effort by Petersen (R-LD23) and the co-sponsors of SCR1003 paid off last week. The result – voters will decide in November 2022 whether to approve a constitutional amendment that ensures the legislature has a say after a governor issues a state of emergency.
A governor currently has power to declare a state of emergency for conditions of “disaster or extreme peril to the safety of persons or property within the state caused by air pollution, fire, flood, epidemic, riot, earthquake or other causes that are likely to be beyond the control of any single county or municipality.” Such a declaration is only terminated by proclamation of the governor or a concurrent resolution of the legislature.
The legislature, however, might not be in session when a state of emergency is issued.
SCR1003 would constitutionally require a governor to call the legislature into special session within 10 days of proclaiming a state of emergency. And once assembled, the legislature could determine whether to enact laws or issue legislative orders to terminate or modify the governor’s emergency powers as well as the state of emergency.
Those legislative orders would have the same authority as a governor’s executive orders, according to a provision of SCR1003. Another provision addresses a concern raised during the COVID-19 lockdowns – how to conduct legislative business if lawmakers cannot make it to the floor of their chambers.
Remote voting is currently allowed but the head count conducted for determining a quorum is based on those legislators present in the building. But if SCR1003 is approved by voters, quorums could be counted based on remote-attendance by a lawmaker under certain situations.
That would ensure the legislature can do its constitutionally-mandated duties even if several members are not in the building.
One of the most impassioned SCR1003 floor speeches came from Rep. Jake Hoffman (R-LD12) who advocated during voting on June 25 not only in support of the concurrent resolution but also to end of the COVID-19 public health emergency Gov. Doug Ducey declared more than 15 months ago.
According to Hoffman, Arizona’s state of emergency statutes permit “the most draconian measures out of all the states except for one. That is abhorrent. That is terrible.” He added that current laws allows emergency powers which are “unchecked and out of control.”
SCR1003, Hoffman said, “is measured, it is reasonable, it does not overreach, and it does not eliminate the ability for emergency orders and emergency declaration.”
He also called on Ducey to put on end to Arizona’s COVID-19 public health emergency. “It is time for this emergency order to end, period, stop all. End of story, turn it off,” Hoffman said.
But legislators did more last week that just ensure SCR1003 gets before voters next year.
The House and Senate also passed SB1819 which includes a provision that ends a governor’s public health state of emergency after 120 days unless extended in whole or in part by concurrent resolution of the legislature. That provision of the bill will not apply to a state of emergency issued before Jan. 1, 2023.
Petersen, the bill’s prime sponsor, told AZ Free News both SCR1003 and SB1819 are important given Arizona’s rating as second worst in the nation for the balance of powers between the executive and the legislative branches when it comes to emergency orders.
“SCR1003 and SB1819 are needed to bring Arizona into balance like the rest of the nation,” Petersen explained. “The measure that goes to the voters is important because it brings the legislature into session to consider any emergency orders issued. Meanwhile, SB1819 that we passed is important because it terminates those orders after four months.”
The two measures work hand in hand, Petersen noted.
“One makes sure the legislature has a voice in emergency orders from the start. The second makes sure that they don’t last forever,” he said.
Just hours after a judge slammed the door on their legal challenge to two State Senate subpoenas, the Maricopa County Board of Supervisors announced they will not appeal a court order requiring them to comply with the election-related subpoenas.
“Judge [Timothy] Thomason’s ruling brings clarity to whether Senate subpoenas apply to ballots that, per state law, must be kept private following an election; as well as the many other documents and equipment demanded,” Board Chairman Jack Sellers said in a statement. “We respect his legal opinion and will immediately start working to provide the Arizona Senate with the ballots and other materials.
The ruling by Thomason that the subpoenas issued in January “are legal and enforceable” made it clear that the Senate and its soon-to-be-announced auditor must not only be given access to Maricopa County’s electronic voting system -computers, software, tabulators- but also the more than 2 million ballots cast in the 2020 General Election.
“The Subpoenas comply with the statutory requirements for legislative subpoenas,” Thomason wrote in his detailed, 16-page finding. “The Senate also has broad constitutional power to oversee elections. The Arizona legislature clearly has the power to investigate and examine election reform matters. Accordingly, the Senators have the power to subpoena material as part of an inquiry into election reform measures.”
In his statement, Sellers also noted that Maricopa County elections officials have already turned over more than 11GB of election-related data demanded in the two subpoenas issued by Senate President Karen Fann and Senate Judiciary Chair Warren Petersen. And it didn’t take long for legislators to react to the county’s no-appeal decision.
“County said they needed a court order to comply with the subpoena. They got it,” Petersen tweeted after Thomason’s clerk released the detailed ruling to the parties. “Election integrity wins today.”
News of Thomason’s ruling that the Senate’s subpoenas served a legitimate legislative purpose and did not violate separation of powers principles was also well received by former Sen. Eddie Farnsworth. It was Farnsworth who along with Fann issued two subpoenas back in December that Maricopa County’s five-member board also ignored.
Instead of complying with the Fann / Farnsworth subpoenas, the county board sued the Senate and later decided to do its own post-election audit of the electronic voting system without participation by any of the legally-authorized political party observers.
“It is unfortunate that the Maricopa County Board of Supervisors’ incessant delaying tactics and smoke and mirrors audit in contempt of the legislature’s legal authority has cost Arizona citizens so much time, money, and trust,” Farnsworth said Friday. “Hopefully, the Senate, through a true forensic audit, can restore some confidence in the election system.”
Arizona’s legislators have a lot on their plates with this week’s start of the new session. Yet while many are focused on financially strapped small businesses, election integrity issues, and getting schools reopened, Senator Kirsten Engel is concerned about paper and plastic bags.
At issue are the kind of bags used by thousands of people every day along with other types of “auxiliary containers” such as cans, bottles, boxes, and cups to take merchandise or food from a business. But those businesses could be forced to come up with new options if a bill introduced by Engel, a Democrat from Tucson, passes.
Engel is the sponsor of SB1132, which seeks to repeal ARS § 9-500.38, the state law which prohibits cities and towns from regulating auxiliary containers. The bill has not yet had its First Read during the new legislative session.
In 2016, the Arizona Legislature deemed the regulation of the use and disposition of auxiliary containers to be a matter of statewide concern. There is nothing on Engel’s website explaining why she believes it is important to allow every city or town to set its own container rules.
But the result, especially for companies with stores or restaurants in multiple cities or towns across Arizona, would likely be chaos, as well as higher costs. For instance, without ARS § 9-500.38, it would be possible for a Target store in Tucson to be prohibited from utilizing single-use plastic bags, while the Target store in Sierra Vista has no such restriction.
Or a grocery store in Florence could be forced to use paper bags constructed of a certain percentage of recycled products while a store for the same chain in Flagstaff could be required to use bags with a different percent.
The owner of several restaurant franchises in Pima County was surprised to find a Tucson-area senator pushing for the change.
“This is not a business friendly bill,” he said. “It seems like someone hasn’t thought this through very well, or just doesn’t want Arizona to be business-friendly.”
Despite ARS § 9-500.38, the City of Bisbee changed its city code in 2016 to ban retail businesses from utilizing single-use plastic bags. The city code included a fine of up to $500 per violation.
Attorney General Mark Brnovich was asked at the time by Sen. Warren Petersen to investigate the city’s code. In October 2017, Brnovich issued an opinion that the code conflicted with -and thus violated- state law, the same law Engel now seeks to do away with.