Former solicitor general weighs in on initiative reform bill

Arizona’s former solicitor general says the state Senate should adopt legislation passed by the state House of Representatives that would reduce fraud in the gathering of initiative petition signatures and would provide greater clarity over the role of the state attorney general in the preparation of the brief descriptions of initiatives that appear on voters’ ballots.

In a memo to the Arizona Chamber of Commerce and Industry, Dominic Draye, who is now with the law firm of Greenberg Traurig, writes that Senate Bill 1451 “provide(s) clarity that ballot language drafting is a cooperative effort between the Secretary of State and the Attorney General.”

Draye, a graduate of Penn Law School and a former clerk on the federal Fifth Circuit Court of Appeals, was appointed to solicitor general in 2017, a position charged with preparing legal opinions and litigating the state’s most important appeals.

The bill, sponsored by state Sen. Vince Leach (R-Saddlebrook), contains several provisions designed to reduce fraud among petition signature gatherers who must register with the Secretary of State’s office because they collect signatures for pay.

The bill was amended in the House to clarify that the state attorney general may accept, reject, or modify ballot language prepared by the secretary of state.

During a debate in the House, opponents of the amendment by Rep. Kelly Townsend (R-Mesa) argued the amendment would be a departure from current practice, while proponents argued the amendment simply clarified the scope of the attorney general’s role as the state’s chief legal officer.

Some Republican senators voiced concern about the changes during a recent party caucus meeting. All Senate Republicans voted for the bill in its original form before it was amended in the House. Because of the House amendment, the Senate must vote on a version reflecting the House’s changes.

“The Secretary of State retains her role as the official who initially drafts the ballot language. At the same time, the Attorney General retains his role as the official tasked with approving the language as drafted or with modifications,” Draye writes. “If a rewrite is in order, the Attorney General can reject the language, requiring the Secretary of State to prepare another draft. These functions have been in practice for decades. The amendments simply provide additional statutory specificity.”

The Arizona Chamber of Commerce, one of the bill’s supporters, agreed with Draye’s assessment.

“Despite claims to the contrary, the House amendment is not a major revision of current practice,” Arizona Chamber President and CEO Glenn Hamer said. “This bill will prevent fraud and, thanks to the House amendment, will diminish the chances that activist groups will attempt to use the process to sink the state into costly, time-consuming litigation.”

Opponents of the bill have circulated a counterproposal to the Townsend House amendment that, according to Draye, should be a non-starter.

The opponents’ counteroffer “will expressly authorize and expand pre-election litigation over ballot measure language in state court,” Draye writes. He calls the offer “ill-advised for several reasons.”

The Chamber’s Hamer says his group will continue to urge support for the bill in its current form.

“This is a commonsense bill that will reduce fraud and needless litigation,” Hamer said. “We’ve identified this bill as a top priority for the 2019 session. The Chamber believes this bill is a must-have. For too long, the state’s initiative system has been gamed by interests who don’t have Arizona’s best interests at heart. Senate Bill 1451 takes a big step toward preventing fraud and abuse of our initiative system.”