PHOENIX - Attorney General Mark Brnovich announced today that the Ninth Circuit Court of Appeals denied a request for an injunction pending appeal in a case involving qualification of initiatives for the ballot. This is another victory for the State of Arizona and ballot integrity. Although the Arizona Constitution has mandated for 108 years that signatures on initiative petitions must be signed in the presence of a circulator, the challengers sought to permit the use of electronic signatures.
Initiative proponents could begin gathering signatures to qualify for the 2020 ballot as early as November 3, 2018, providing them twenty months to obtain the requisite signatures. However, the Plaintiffs did not begin collecting signatures until October 4, 2019, and January 29, 2020.
Last month, the Plaintiffs (two committees proposing initiatives relating to election procedures and healthcare, as well as a voter) filed a lawsuit in federal court to force the State to accept signatures collected through E-Qual, the State’s online petition system. The challengers also sought a preliminary injunction and temporary restraining order. In their complaint, the Plaintiffs only challenged Arizona statutes, and ignored the fact that Arizona’s Constitution has, since statehood, mandated in-person execution of signatures — a requirement that an exchange of binary bits between a person and a computer through the internet obviously cannot satisfy.
After the lawsuit was filed, the Secretary of State stated she “wo[uldn]’t oppose the request made by these [plaintiff] organizations.” As a result, the State was compelled to intervene through Attorney General Brnovich to defend the century-old requirements of the Arizona Constitution and the statutes challenged by Plaintiffs.
"Special interests should not be able to use the pandemic as an excuse to sweep away a century-old fixture of Arizona’s Constitution simply because others will not stand up in defense of it,” said Attorney General Mark Brnovich. "As Attorney General, I will enforce the law as it is and it is incumbent upon every other elected official to do the same."
The district court denied Plaintiffs’ request for injunctive relief on April 17, finding they failed to challenge the in-person requirement of the Arizona Constitution, thus failing to establish the redressability of their alleged injury. The district court explained that “the signature requirements Plaintiffs seek to displace have been a part of Arizona’s constitutional and electoral landscape for over a century. These requirements reflect a considered judgment, which has stood the test of time, about how best to prevent electoral fraud and promote civic engagement.” The court further explained that “a ‘reasonably diligent’ committee could have placed its initiative on the November 2020 ballot despite the Title 19 requirements and the COVID-19 outbreak.”
Plaintiffs appealed to the Ninth Circuit on April 20th, and sought an emergency injunction pending appeal on April 22. The Secretary again indicated that she “did not oppose the narrow relief sought in the District Court by Plaintiffs-Appellants.”
On Monday May 5th, the Ninth Circuit quickly denied Plaintiffs’ request for an injunction pending appeal. The Ninth Circuit concluded, once again, the Plaintiffs “having failed to challenge the Arizona constitutional requirement of in-person signatures cannot get the redress from the court they now seek by only challenging the statute at issue.”
Deputy Solicitor General Drew C. Ensign, for the Arizona Attorney General’s Office, argued the case before the district court on April 14 and led the briefing in the Ninth Circuit.