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initiative campaigns to request use of electronic signature gathering

Arizona's recreational marijuana initiative is fighting to make the Nov. 6 ballot as federal and state courts decide if electronic signatures can be used by initiatives sidelined during the COVID-19 pandemic before the state's filing deadline.

The Smart and Safe Arizona initiative has already collected more than 300,000 signatures since filing paperwork last summer, according to Stacy Pearson, senior vice president of Strategies 360. Initiatives need to file 237,645 valid signatures to make the Arizona 2020 ballot before July 2, 2020. Typically, an initiative campaign will collect more signatures than needed because a percentage of signatures are typically invalid.

"Smart and Safe is in the best position. We filed the marijuana legalization effort in August and began collecting (signatures) around Labor Day," Pearson said. "The other initiatives are not in as good of shape. They don't have as many signatures at this date."

While the recreational marijuana initiative has collected more signatures than needed, Pearson said the group's plan was to file more signatures than any initiative in Arizona history.

"The original plan was to file the most signatures of initiative in Arizona history and we were on track to do that until the pandemic hit," Pearson said. "We want more (signatures). Every additional valid signature is an insurance against a challenge."

Smart and Safe, along with three other initiative groups—Save our Schools Arizona, Invest In Education and Arizonans for Second Chances—filed a Petition for Special Attention with the Arizona Supreme Court on April 2. The groups want to utilize the state's E-Qual electronic signature system in an attempt to help initiatives continue collecting signatures during the pandemic.

Federal and state legislative candidates have been using E-Qual for signature gathering purposes since 2012. According to current state law, state and federal office seekers can only use the E-Qual system.

Roopali Desai, the attorney representing the initiative groups, said the situation is depriving her clients of exercising their constitutional rights.

"Our reason is based entirely on the extraordinary circumstances that we're all facing in connection with the COVID-19 pandemic. The idea is that these folks have the right to exercise their constitutional legislative right," Desai said. "Without this opportunity to use e-signature gathering, which is already available to candidates, they would be prohibited from exercising their constitutional right."

Desai said she believes Arizona's E-Qual system is not extended to citizen ballot initiatives because the state legislature does not want citizens to have the same legislative power as state lawmakers.

"The legislature has made it incredibly clear they do not like citizens having co-equal legislative power," Desai said. "They want to make it easy on themselves to qualify as candidates, but not allow it to be used by anybody else."

Pearson agrees with Desai's assessment of the situation. She said after the state's minimum wage rose when Prop. 206 passed in 2016, Republican state lawmakers have been trying to dissolve one of the foundations of the Arizona Constitution: direct democracy.

"I think the Arizona majority party has been very clear that they are not fans of direct democracy, despite this being a foundational issue in Arizona," Pearson said. "Their dislike of direct democracy intensified after minimum wage passed by such a resounding margin and there was nothing the business community and the Republican legislature could do to stop it."

Pearson said she hopes the state Supreme Court will rule in their favor after considering the circumstances surrounding their situation of not being able to collect in-person signatures. She said it's absurd the state would expect initiative campaigns to be excluded when the technology is available to remedy the situation.

"Hopefully the court will take careful consideration of the unprecedented situation that we're in and the inability to take a 20th-century method and safely use it in the middle of a pandemic," Pearson said. "In a perfect world, the court would recognize the absurdity and offer relief to the campaigns in this cycle."

Two other state initiative groups filed similar lawsuits in federal court, but federal Judge Dominic Lanza ruled against them last week.

In response to these lawsuits, Arizona Secretary of State Katie Hobbs issued a statement of support saying her office "won't oppose the request being made by these organizations" and "can implement the necessary changes, should that be the court's order."

But Arizona Attorney General Mark Brnovich has been fighting against the lawsuit, arguing that not only does state law not allow the use of electronic signature gathering for initiatives, but also that the Arizona Constitution requires in-person signatures.

That argument was echoed in a statement by Senate President Karen Fann and House Majority Leader Rusty Bowers, whose motion to intervene in the case was granted by the Arizona Supreme Court.

"The law does not allow—much less require—initiative proponents to be allowed to gather signatures electronically," Fann and Bowers said in joint statement. "According to Article 4, Part 1 Section 1, Paragraph 9, the Arizona Constitution requires that "each of the names on said (petition) sheet was signed in the presence of" the circulator of the initiative petition. Therefore, the action to expand E-Qual, the State's online signature gathering platform, would be unconstitutional."

The Arizona Supreme Court is considering the case without a hearing and is expected to make a decision by the end of April, Desai said.

"I think the court understands the importance of expediting its ruling," Desai said. "As long as the court puts us at the top of its list, I have every reason to believe we'll have a decision by the last week of April."

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