The COVID-19 pandemic hit Arizona in March 2020, resulting in an emergency declaration and a series of “stay-at-home” orders that closed businesses and encouraged Arizonans to avoid face-to-face meetings. This posed a hardship for advocates of ballot initiatives who needed to gather signatures on petitions to place proposed laws before voters. Although Arizona law permits online signature-gathering to put candidates on the ballot, it requires signatures for initiatives to be in-person, on paper, witnessed by the petition circulator.
Claiming the emergency made it prohibitively difficult to comply, proponents of several initiatives sued, arguing that it was unconstitutional to allow online signature-gathering for candidates but not initiatives. In their view, this difference in treatment burdened their free speech rights and violated the Equal Protection Clause of the Fourteenth Amendment. They sought an order permitting them to use an online petition system called E-Qual, instead.
In Arizonans for Second Chances v. Hobbs, the Arizona Supreme Court said no. While circulating petitions is obviously a constitutionally protected speech right, requiring in-person signatures does not limit any speaker’s ability to express herself or persuade voters. “Any limitations on such interactive communications are caused by the virus, and not [state law],” the court concluded. In fact, “[the] in-person requirement is designed to facilitate in-person communications between circulators and potential signers, not limit them.”
Even viewed as a restriction on access to the ballot, rather than free speech, the in-person signature requirement was still constitutional. The test for determining whether a law limiting ballot access is constitutional depends on its severity: “severe burden[s]” on putting something on the ballot, or laws designed to exclude disfavored parties, are subject to strict scrutiny. But “reasonable, nondiscriminatory restrictions” need not be narrowly tailored, and need only serve “‘important regulatory interests,’” not compelling interests.
To determine whether the in-person signature rule fell into the “severe” category or the “reasonable” category, the court examined whether initiative proponents exercised diligence in getting signatures, and it compared Arizona’s pandemic experience with those of other states. As to diligence, it found that some plaintiffs managed to obtain the required number of in-person signatures before the court issued its decision, proving that the restriction was not “severe.” Other plaintiffs “made no effort to collect signatures for sixteen months,” which showed that whatever difficulties they experienced were caused by their own negligence, not the signature requirement. And court decisions from other states highlighted the fact that Arizona’s signature rule was not as burdensome as the plaintiffs claimed. Those courts had been more receptive to the argument that signature requirements were burdensome—but in those states, the time period for gathering signatures closely aligned with stay-at-home orders, making matters were far more difficult for petitioners than was the case in Arizona.
Since the in-person signature requirement was not “severe,” the court concluded, it was subject to lesser scrutiny—which it easily satisfied, given the important regulatory interests the requirement serves.
Throughout its opinion, the court emphasized that the in-person requirement is not just statutory, but part of the state Constitution, which specifies that signatures must be “signed in the presence” of a petition circulator—who verifies the authenticity of all signatures via an affidavit—and must be on “sheet[s]”—i.e., paper. As pressing an emergency as the pandemic might be, the court found it insufficient justification for ignoring the constitutional mandate. “The people of this state look to us to uphold the law,” it declared. “[I]f COVID-19 justifies setting aside [the signature rule] today, then perhaps tomorrow it will be used to set aside other constitutional protections.”
In a partial dissent, Vice Chief Justice Ann Timmer concluded that strict scrutiny should apply because it was “common sense” that the pandemic combined with the signature requirement “severely burdened” initiative proponents. She thought it improper to consider the fact that some plaintiffs managed to get enough signatures, given that this happened after the lawsuit was filed. “What would my colleagues have said if only one of the Petitioners had gathered a sufficient number of signatures? Or none?” Timmer would not have ordered the state to use the E-Qual system, however; she would simply have barred enforcement of the signature requirement, and left it to election officials to work details out.
One matter on which both sides agreed was the gravity of the question of changing election rules in the middle of an emergency. Laying aside the constitutional mandate would cause “long-term damage,” the majority believed, because it “would justify setting aside other laws and constitutional protections whenever a crisis or emergency arises. . . . In short, our decision would lie ‘about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.’” Vice Chief Justice Timmer did not disagree that courts should “refrain from compromising the rule of law simply to ease hardships faced during an emergency,” but reached the opposite conclusion: “[W]hen a state law restricting access to the ballot applies to violate fundamental federal constitutional rights . . . we can only preserve the rule of law by striking that restriction.”