Almost as important as the ballot measure itself is the language used on circulating petitions. Without the correct phrasing and format, a petition could be struck down before qualifying for the ballot.
Where most petitions run into problems is on the shortened summary of the initiative. The synopsis of the ballot initiative can be no more than 100 words and must include all the principal provisions from the proposition.
Generally, an attorney on the “yes” side of the initiative drafts the summary, but he or she faces uncertainty when drafting the petition language. Because no one can approve the summary in advance of its submission, the pro-side cannot ensure its approval by the secretary of state.
After submission, any party can challenge the language, with the Arizona Supreme Court serving as the final arbiter to determine whether the petition language has the potential to confuse or mislead voters.
The most recent example of a ballot measure that was struck down due to its language is the Invest in Education Act, which sought to raise taxes on individuals and small businesses to fund education.
“Invest in Ed was the first one in a very long time that had been struck down for a defective caption,” Statecraft attorney Kory Langhofer said. “There was polling evidence in that case that suggested the defect would’ve changed how people would’ve seen the proposition.”
Opponents of the legislation argued that the summary described Arizona’s top tax brackets as rising by 3.46 and 4.46 percent, rather than percentage points. In actuality, 3.46 and 4.46 percentage point gains are equivalent to 76 and 98 percent increases.
Ballard Spahr attorney Roy Herrera notes that the Invest in Education Act decision throws a wrench into the creation of future petition summaries.
“My question is, ‘How am I assured of complying?’” he said. “There’s no real hard-and-fast rule about what’s misleading and what isn’t. Invest in Ed is going to be used against every initiative that gets proposed.”
Because there is no formal vetting of the summaries, Langhofer says initiative lawyers can face roadblocks to get their initiative on the ballot.
“No one approves [the summary] in advance,” he said. “The ‘yes’ side has to come up with it and finalize it on their own without approval of the secretary of state.”