by Timothy Sandefur
August 9, 2018
The Goldwater Institute yesterday filed a friend of the court brief in the Arizona Supreme Court supporting the legal challenge to the Arizona initiative that would require state electricity providers to buy from more expensive “renewable” sources. It would amount to nothing more than a transfer of wealth from Arizona consumers to companies that can’t compete fairly—par for the course in California already, which is where the idea comes from.
Opponents to the initiative filed a lawsuit against the initiative, arguing among other things that the initiative’s backers failed to tell people that it’s basically entirely funded by “NextGen Climate Action” when they applied for permission to circulate signature petitions. That’s important because the law requires that a political committee file an application and then get a serial number and various other things from the Secretary of State. And in Arizona, the rule of “strict compliance” says that you have to scrupulously follow the election laws when engaged in citizen lawmaking. That didn’t happen here—but the trial court ruled that that didn’t matter. In fact, the court said that the Secretary of State had no authority to reject an application, even if it didn’t contain the proper information. “The Secretary of State could not have refused to assign and issue an official serial number to the Committee,” the court said. “Nothing in [the law] authorized or required the Secretary of State to disqualify petition sheets or signatures based on an allegedly inadequate description of the Initiative’s sponsor in the filing paperwork.” That case has now been appealed to the Arizona Supreme Court on a rushed schedule (to get it decided before the election).
In the brief we filed yesterday, we argue that the Secretary does indeed have an obligation to disqualify inadequate applications for serial numbers. After all the mandatory language that the law uses (the Secretary “shall” do such-and-such) is also found in the portion of the law that relates to applications for serial numbers: The applicant shall provide the correct information. An application that lacks that information is the same thing as no application at all—and the Secretary, of course, can’t issue a serial number to no application at all. And to say otherwise, as the trial court did, is to undermine the “strict compliance” rule, because it means the Secretary must turn a blind eye to incorrect, or perhaps even fraudulent, applications that don’t strictly comply with the law.
The “strict compliance” doctrine may seem hypertechnical or picky at times. But these technicalities are necessary to protect Arizonans from the potentially dangerous power of the initiative process. Our Constitution creates checks and balances and separation of powers for a reason: because these structural features limit and block government power that might otherwise threaten the rights of those who lack political influence. The initiative process has to be cabined in a similar fashion, lest the dangerous power of the majority be unleashed to violate individual rights and the rights of taxpayers.
You can read our brief here.
Timothy Sandefur is the vice president for litigation at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.