One of the most debated topics of ballot measures is the use of the “strict compliance” versus “substantial compliance” standard of judicial review.
Ballot initiatives were subject to “substantial compliance,” meaning courts were unlikely to remove a measure from the ballot unless the initiative or signature gathering process perpetrated substantial election illegalities.
In 2017, Gov. Doug Ducey signed into law House Bill 2244, which shifted the standard to strict compliance.
Gov. Ducey expressed his rationale for H.B. 2244 in a statement. “This commonsense legislation preserves the integrity of the process by ensuring that those seeking to make lasting changes to our laws comply with current laws,” Ducey said.
Legal expert Roy Herrera highlights the Invest in Education initiative as an example of how strict compliance challenges initiatives.
“Where Invest in Ed throws a wrench into certain things is that what was not strictly compliant was the 100-word summary,” he notes. “If the hundred word was misleading in some way, then it wouldn’t be compliant. The court decided that it was possible to mislead the public.”
Advocates of strict compliance argue that lenience in ballot initiatives has forced the process away from its intended use.
Snell & Wilmer Law partner Eric Spencer, who is the previous state elections director, describes the motivation for strict, rather than substantial, compliance.
“It’s been deemed necessary to reign in that practice and make sure that process is more strictly complied with,” he said. “This makes sure those laws that make it to the ballot are the ones that really deserve to be there.”
If courts are given freedom when examining ballot initiatives, then faults in the process can easily slip through the cracks. Formatting errors or missing information face no consequences, leading to blurry law that could negatively impact the state for years.
“If there’s going to be so much money put into it, you could theoretically flood election officials and courts with fraudulent signatures or questionable signatures at such a volume that it would be difficult to root out potential fraud that is baked into the cake,” Spencer said. “The strict compliance regime is designed to put tools in place to better prevent or detect that fraud in the system. The backers of strict compliance wouldn’t say it’s designed to discourage initiatives but instead to get it back to what it was designed for.”
Opponents of strict compliance argue that it takes away too much judicial discretion. In fact, last May, the Supreme Court declined to hear an appeal of the strict compliance law. Nevertheless, it could face challenges in the future, especially if driven by a voter-led ballot initiative.