April 15, 2020
By Timothy Sandefur
If the history of democracy teaches us anything, it is that suddenly changing the rules of an election in the midst of a crisis—especially by the decree of a single official—is a terrible idea. Emergencies are times when people are least likely to dispassionately weigh the long-term costs of benefits of their actions, and the whole purpose of constitutional rules is to keep people from making bad decisions in the heat of the moment. Breaking those rules can inflict permanent damage on democratic government.
Unfortunately, the coronavirus-related shutdowns across the country have caused some people—including here in Arizona—to demand that public officials ignore the rules for running elections. In a pair of lawsuits filed recently in state and federal courts, proponents of ballot initiatives have asked judges to issue orders overriding the state’s laws governing the initiative process. The Goldwater Institute has filed briefs in both cases urging judges to reject these efforts to disregard the law.
Both cases involve the rule—embedded in both the Arizona Constitution and Arizona election statutes—that lets voters qualify a candidate for the ballot by either signing an in-person petition or by submitting signatures online, but only allows in-person signatures to put an initiative on the ballot. The first case, filed in the Arizona Supreme Court, argues that this difference violates freedom of speech and the requirement of equal treatment. The second case, in federal court, argues that it violates free speech and freedom of association. But both are wrong, because there are critical differences between candidate elections and initiative elections that make it not only legitimate but essential for laws regulating initiatives to be stricter than those applying to candidates.
If voters elect a candidate and he or she does a bad job, voters can elect someone else the next time, or can even us the recall process to remove the official from office. But Arizona’s so-called Voter Protection Act (VPA) actually prohibits the people, through their elected representatives, from repealing initiatives. And it even makes it prohibitively difficult for the legislature to even fix inadvertent errors in initiatives—requiring a 3/4 vote of both houses. In other words, voters can change their minds about candidates, but initiatives are virtually impossible to change.
What’s more the Arizona Constitution itself prohibits electronic signatures for initiatives, since it requires petition circulators to swear an affidavit that says they witnessed each signature personally. That can’t be done with online petitions. In other words, these lawsuits are essentially asking judges to overrule the state Constitution—which would be fine if the initiative rules violated the federal Constitution. But they don’t. These rules don’t infringe on free speech because they don’t limit anybody’s ability to express an opinion. Nor do these rules affect the right to vote, since they don’t limit anyone’s ability to cast a ballot. Instead, these rules involve the procedure for qualifying an initiative for placement on the ballot—which is an entirely different question. You have no constitutional right to put any particular thing on the ballot.
The risk of changing the democratic process in the midst of a crisis ought to be clear. In some countries, such things have even led to the destruction of democracy. But setting a judicial precedent that allows officials to disregard the law during an emergency is even more dangerous. As Justice Robert Jackson wrote in his dissent in Korematsu v. United States, a court decision which upholds such an extreme action can be “a far more subtle blow to liberty” than the action itself, because it creates a precedent that “lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”
This is a time for calm and rational thinking—not for sudden, unconstitutional, and potentially dangerous changes to how our democratic system works.
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.