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Supreme Court opinion explains decision keeping Prop 204 on ballot

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Wednesday, Dec. 5, 2012
By Natasha Khan
Cronkite News

PHOENIX – Weeks after voters rejected Proposition 204, the Arizona Supreme Court issued an opinion affirming its decision that allowed the measure to stay on the November ballot despite objections from Secretary of State Ken Bennett.

“There really was no need for this to be challenged or to go to this level,” said Ann-Eve Pedersen, chairwoman of the campaign that put the measure on the ballot.

The measure would have established a 1-cent-per-dollar sales tax to fund education, transportation and human services that would have raised an estimated $1 billion a year.

In July, Bennett rejected 290,000 petition signatures gathered by the ballot’s backer, the Quality Education and Jobs Campaign, because the proposed law attached to the petitions didn’t display the same text as the proposed law filed with the office.

The campaign filed two versions with the Secretary of State’s Office: a CD-version that included the full text of the law and a paper version that omitted 15 lines. The campaign circulated its petition with the full-text version attached. The Secretary of State’s Office put the limited version on its website.

The campaign filed a lawsuit saying it had mistakenly submitted the wrong file, and a Maricopa County Superior Court judge in July ruled in the campaign’s favor.

“It was a clerical error,” Pedersen said.

Bennett appealed to the Arizona Supreme Court, which in August upheld the lower court’s ruling ordering that the initiative be placed on the November ballot.

The court ruled the campaign was in compliance with the Arizona Constitution when it filed its initiative because there was no fraud detected and the error was discovered with enough time for the Secretary of State’s Office to remedy the mistake.

The court also noted that the circulated petitions had the correct version of the law attached.

Bennett said in a news release the opinion was “extremely gratifying and reassuring” because the court said it was proper for him to press the issue even though the trial court judge questioned his actions.

“From the moment our office discovered the error made by the Quality Education and Jobs committee, we knew litigation was imminent regardless of whether or not we accepted the filing,” Bennett said.

He said to avoid uncertainty in the future his office “will consider making changes to clarify the process related to the submission and acceptance of official filings as suggested by the Court.”

The opinion, written by Chief Justice Rebecca White Berch, said: “… we must respect the wishes of the more than 290,000 petition signers and protect the people’s right to propose laws.”

The opinion said Bennett argued that his office only considers paper versions of a law and only accepted the CD version as a courtesy. But the court found nothing in Arizona’s Constitution or the secretary of state’s handbook saying a digital copy of an initiative was unacceptable.

The court also declined to consider Bennett’s request to deny proponents of future initiatives who file versions with a “substantive difference” in text from the circulated versions.

Pedersen said she wasn’t surprised by the opinion and called Bennett’s appeal unnecessary.

“He wanted a legal opinion and he got it at a lower court level. That should have satisfied the issue,” she said.