ARIZONA SUPREME COURT ARIZONANS FOR SECOND CHANCES, REHABILITATION, AND PUBLIC SAFETY (SPONSORED BY ASJ ACTION FUND); SMART AND SAFE ARIZONA; INVEST IN EDUCATION (SPONSORED BY AEA AND STAND FOR CHILDREN); and SAVE OUR SCHOOLS ARIZONA,

Petitioners/Plaintiffs, v. KATIE HOBBS, in her official capacity as Arizona Secretary of State, Respondent/Defendant.

No. CV-20-0098-SA

BRIEF OF AMICI CURIAE

HON. KATE GALLEGO IN HER OFFICIAL CAPACITY AS MAYOR, CITY OF

PHOENIX; HON. CORAL EVANS IN HER OFFICIAL CAPACITY AS MAYOR, CITY OF

FLAGSTAFF; AND, HON. REGINA ROMERO, IN HER OFFICIAL CAPACITY AS

MAYOR, CITY OF TUCSON IN SUPPORT OF PETITIONERS WITH CONSENT OF ALL PARTIES

Shawn K. Aiken (009002)

SHAWN AIKEN, PLLC 5090 North 40th Street, Suite 207 Phoenix, Arizona 85018 T: (602) 718-3340 shawn@shawnaiken.com Attorney for Amici Curiae Hon. Kate Gallego, Hon. Coral Evans, and Hon. Regina Romero

ii

TABLE OF CONTENTS

IDENTITY AND INTEREST OF AMICI CURIAE ......................................... 1

INTRODUCTION AND SUMMARY OF ARGUMENT ................................ 1

I. SINCE STATEHOOD, THE POWER OF INITIATIVE HAS BEEN RESERVED TO THE

PEOPLE OF ARIZONA. .................................................................................... 2

A. The State Constitution Guarantees Citizens’ Right to Propose and Adopt Initiative Measures. ................................................................. 2

B. The Arizona Supreme Court Has Long Guarded the Right to Initiative. ............................................................................................ 3

II. THE WIDESPREAD DISRUPTION CAUSED BY THE COVID-19 DISEASE

UNDERMINES THE RIGHT TO INITIATIVE BECAUSE THE GATHERING OF

PETITION SIGNATURES IS NEARLY IMPOSSIBLE. ............................................. 5

A. Strong Responses by the Governor and Mayors Underscore the Threat Posed by the Virus Today. ....................................................... 5

B. The Institute of Health Metrics and Evaluation at the University of Washington Advises That Relaxing Social Distancing in Arizona May be Possible Only After June 8. ............................................................ 8

III. USE OF E-QUAL REASONABLY RESOLVES THE VIRUS’ THREATS TO

ARIZONANS’ HEALTH AND THEIR RIGHT TO INITIATIVE WITH NO HARM TO

THE STATE’S INTERESTS. ............................................................................ 13

A. The E-Qual Online Portal for Gathering Signatures Substantially Complies with the Relevant Constitutional and Statutory Requirements. ................................................................................... 13

1. E-Qual substantially complies with the state constitutional requirements for gathering and authenticating initiative signatures on “sheets.” .......................................................... 13

2. E-Qual satisfies the statutory requirement for “electronic filing” of initiative petition sheets. .......................................... 18

B. The Available Public Record Suggests No Threat of Fraud. ............. 19

CONCLUSION AND REQUEST FOR RELIEF ............................................ 20

NOTICE OF ELECTRONIC FILING.............................................................. 21

CERTIFICATE OF COMPLIANCE ............................................................... 22

iii

TABLE OF AUTHORITIES

CASES Feldmeier v. Watson, 211 Ariz. 444, 447 (2005) ................................................... 16 Home Builders Ass’n of Central Ariz., Inc. v. Riddel, 109 Ariz. 404, 406 (1973) .... 4 Pioneer Trust Co. v. Pima County, 168 Ariz. 61, 66 (1991) ..................................... 4 Robert Goldstein et al. v. Secretary of the Commonwealth, Massachusetts

Supreme Judicial Court (April 17, 2020) .............................................................. 7 Stambaugh v. Killian, 242 Ariz. 508, 510, ¶ 10 (2017) ........................................... 15 State v. Hernandez, 244 Ariz. 1, 7, ¶ 29 (2018) ..................................................... 14 W. Devcor, Inc. v. City of Scottsdale, 168 Ariz. 426, 428 (1991) ............................ 4

STATUTES A.R.S. § 19-102 ..................................................................................................... 18 A.R.S. § 19-112(C) and (D) ................................................................................... 18 A.R.S. § 19-121...................................................................................................... 18 A.R.S. § 19-121(A)(3) ............................................................................................ 18 A.R.S. § 19-121(C) ................................................................................................ 18 A.R.S. § 41-121(A)(12) .......................................................................................... 16 A.R.S. §§ 19-101 to -143 ........................................................................................ 18

OTHER AUTHORITIES Arizona Enabling Act ............................................................................................. 2 City of Flagstaff Second Proclamation Under Declaration of Emergency Dated

March 15, 2020 from Mayor Coral J. Evans (3.26.20) .......................................... 5 Executive Order 2020-12 ....................................................................................... 6 Executive Order 2020-18 ....................................................................................... 6 Florida Secretary of State, Emergency Rule No. 1SER20-2 (April 3, 2020) ........... 8 General Order 20-20. .............................................................................................. 7 Kissler et al., Science 10.1126/science.abb5793 ................................................. 8, 11 New Jersey Governor, Executive Order N. 105 (March 19, 2020) .......................... 8 Pioneer Days in Arizona (New York: Macmillan Co., 1926) .................................... 3 The Birth of Arizona, J. Morris Richards (1940) .................................................... 2 The Role of Recall of Judges Issue in the Struggle for Arizona Statehood, Yolanda

LaCagnina (Master’s Thesis, University of Arizona, 1951) ................................. 2

CONSTITUTIONAL PROVISIONS Arizona Constitution, Art. 4 ................................................................................... 3 Arizona Constitution, Art. 4, Part 1, § 1(2) ............................................................. 3 Art. 4, Part 1, Section 1(9) ..................................................................... 13, 14, 15, 16 Art. 8, Part 1, Section 2 ......................................................................................... 14

1

IDENTITY AND INTEREST OF AMICI CURIAE

Last month, along with the Governor, amici curiae—mayors of Phoenix,

Tucson, and Flagstaff—issued emergency orders designed to protect the public’s

health and slow the spread of the coronavirus. Like other local leaders around the

state and nation, they believe that residents must remain able to fully and

meaningfully participate in our constitutionally protected democratic process

during the pandemic. Gathering initiative signatures online, the Mayors contend,

would safeguard public health by employing an existing, proven alternative to in-

person signing. With their residents’ health uppermost in mind, the Mayors

respectfully support the Petitioners’ request to do so.

INTRODUCTION AND SUMMARY OF ARGUMENT

This case presents two questions: first, whether the Arizona Constitution

permits initiative supporters to sign electronic rather than paper “sheets.” In 1910,

Arizona’s constitutional delegates specified “paper” sheets in the requirements for

only recall petitions. The word “paper” appears nowhere in the section describing

initiative petitions. The constitutional text therefore permits both electronic and

paper “sheets” to gather signatures for initiatives.

Second, this case presents the question whether each voter’s online

authentication of their own signature on an initiative petition would fulfill the same

2

purpose as a circulator’s in-person attestation. It does—same purpose, better

means.

Petitioners request use of the Secretary of State’s existing internet portal

(“E-Qual”), which would permit initiative supporters to electronically sign

petition “sheets” online. State legislative candidates have used E-Qual successfully

for 8 years. The Secretary of State concedes that E-Qual would work here.

And, those following the news over the last 35 days understand that use of E-

Qual would prevent further spread of the virus. Every tool of judicial interpretation

confirms that the law—including especially the Arizona constitution—permits the

Secretary to allow Petitioners’ use of E-Qual. This Court should so hold.

I. SINCE STATEHOOD, THE POWER OF INITIATIVE HAS BEEN RESERVED TO THE

PEOPLE OF ARIZONA.

A. The State Constitution Guarantees Citizens’ Right to Propose and Adopt Initiative Measures.

Nearly every year, beginning in 1891, until Congress passed the Arizona

Enabling Act in 1910, citizens of the Territory of Arizona sought admission to the

Union.1 Proponents convened early statehood conventions.2 Later, they lobbied

1 The Birth of Arizona, J. Morris Richards (1940), at 1. 2 See The Role of Recall of Judges Issue in the Struggle for Arizona Statehood,

Yolanda LaCagnina (Master’s Thesis, University of Arizona, 1951), at 6-7 (discussing statehood conventions in 1891 and 1893). Available at https://repository.arizona.edu/handle/10150/551173 (last visited April 19, 2020).

3

Congress. Finally, on February 14, 1912—following a state constitutional

convention and approval by Arizona’s voters—President William Howard Taft

signed a bill making Arizona the 48th state in the Union.

Even then, Arizona’s constitution stood out.3 In modest overstatement,

Arizona Constitutional delegate A.F. Parsons declared the Arizona Constitution

the “greatest and grandest document since the Declaration of Independence.”4

And, from the start, that great document—Arizona’s constitution—provided for

citizen initiatives. Under Art. 4, the people through initiative could propose new or

amend existing laws by gathering voters’ signatures to place a measure on the

general election ballot.5

B. The Arizona Supreme Court Has Long Guarded the Right to Initiative.

For over 100 years, on whatever issue—taxation, immigration, education,

healthcare, elections—the people of Arizona have exercised their constitutional

right to initiative. After considering 177 initiative proposals during the last 106

3 See id. at 78 (“well-crafted and brief”). 4 See id. (quoting Frank C. Lockwood, Pioneer Days in Arizona (New York:

Macmillan Co., 1926), p. 377). 5 Art. 4, Part 1, § 1(2) of the Constitution of the State of Arizona provides:

“(2)[Initiative power] The first of these reserved powers is the Initiative. Under this power ten per centum of the qualified electors shall have the right to propose any measure, and fifteen per centum shall have the right to propose any amendment to the Constitution.”

4

years, Arizonans have approved 73 measures, including suffrage for women (1912);

changes in the court system (1960 and 1974); term limits for state legislators

(1992); and, many others.6

And, to its lasting credit—no matter how controversial the issues considered

by the voters—this Court has strongly affirmed the people’s right to initiative.

Over the years, in numerous decisions, this Court has expressed its deep respect

for the right to initiative, and long “recognized Arizona’s strong public policy

favoring the initiative and referendum.” W. Devcor, Inc. v. City of Scottsdale, 168

Ariz. 426, 428 (1991) (citing Pioneer Trust Co. v. Pima County, 168 Ariz. 61, 66

(1991)). This case presents the latest opportunity for the Court to again protect

Arizonans’ right to meaningfully exercise their right to initiative, their “superior

right” to “legislate at the polls[,]” Home Builders Ass’n of Central Ariz., Inc. v.

Riddel, 109 Ariz. 404, 406 (1973), and their most important reserved power under

the Arizona constitution.

/ / /

/ / /

6 The Initiative and Referendum Institute (IRI) at the University of Southern

California has compiled the database of all statewide initiatives to appear on every ballot from 1904—the first statewide initiative in Oregon—to 2019. http://www.iandrinstitute.org/data.cfm (last visited April 19, 2020).

5

II. THE WIDESPREAD DISRUPTION CAUSED BY THE COVID-19 DISEASE

UNDERMINES THE RIGHT TO INITIATIVE BECAUSE THE GATHERING OF

PETITION SIGNATURES IS NEARLY IMPOSSIBLE.

A. Strong Responses by the Governor and Mayors Underscore the Threat Posed by the Virus Today.

The spread of the COVID-19 disease undermines Arizonans’ right to

initiative because petition circulators working door-to-door threaten their own and

residents’ health. Last month, the Mayors took decisive and early action to stop the

spread of the virus. On March 16, Flagstaff Mayor Coral Evans ordered closing all

dine-in service at bars and restaurants and closure of gyms and movie theatres.7

Just one day later, on March 17, Phoenix Mayor Kate Gallego and Tucson Mayor

Regina Romero declared an emergency for their cities and ordered closing all dine-

in service at bars and restaurants.8

Nearly two weeks later, on March 30, with some exceptions, Gov. Ducey

issued an unprecedented executive order that has resulted in most Arizona

residents staying at home. The Governor ordered in part as follows:

All persons may leave their place of residence only for Essential Activities, to participate in or receive Essential Governmental

7 See City of Flagstaff Second Proclamation Under Declaration of Emergency

Dated March 15, 2020 from Mayor Coral J. Evans (3.26.20). https://www.flagstaff.az.gov/DocumentCenter/View/63345/SAdminCopie20032615130-002 (last visited April 19, 2020).

8 States of emergency have likewise been declared in many other Arizona cities,

towns, and counties, including Scottsdale, Chandler, Globe, Queen Creek, Mesa, Tempe, Gilbert, Avondale, Buckeye, El Mirage, and Coconino County.

6

Functions, or to participate in or fulfill Essential Functions outlined in Executive Order 2020-12.

Executive Order 2020-18, at ¶ 6 (emphasis added).9 These orders last month from

Gov. Ducey, Mayor Gallego, Mayor Evans, and Mayor Romero confirm the

extraordinary times in which we live.

Like Gov. Ducey, many other governors around the nation have ordered

nonessential businesses closed. Ohio Gov. Mike Dewine, for example, has taken

steps to curtail liquor sales, ordered the release of prisoners, and ordered an easing

in the rules governing the delivery of health care to help flatten the curve of the

spread of the disease.10 And, in recent weeks, the other branches of state and

federal government have also taken steps to manage the crisis. Last week, for

example, this Court participated in oral arguments (April 14 and 16) through a

combination of in-person and remote attendance and reconfigured the courtroom

to ensure social distancing. The Hon. Joseph Welty, presiding judge of Maricopa

County Superior Court, has ordered shutting down all but essential functions.11

9 Ariz. Governor’s Office, Executive Order No. 2020-18, Stay Home, Stay

Healthy, Stay Connected (precluding Arizonans from leaving their homes except to perform certain “essential” functions), available at https://tinyurl.com/ExecOrder-2020-18 (last visited April 19, 2020).

10 https://tinyurl.com/DeWineExecOrders (last visited April 19, 2020). 11 “Many [court] proceedings have been converted to telephonic or

rescheduled.” See Administrative Orders and related statements at https://superiorcourt.maricopa.gov/communications-office/covid-19/.

7

Our own courts are not alone. On April 13, the U.S. Supreme Court

announced that it would hold arguments remotely (and, in an unprecedented move,

make the live audio of those arguments available to the public). On April 16, Chief

U.S. District Judge G. Murray Snow, District of Arizona, ordered extending the

suspension of grand jury proceedings through June 1, 2020. See General Order 20-

20.12

In late March, the Arizona legislature recessed (but did not adjourn). Even

though the Legislature did not complete its planned business for the regular

session, there are no current plans to return to session. Meanwhile, no steps have

been taken—except by Petitioners—to remove the barrier to Arizonans’ right to

participate in the legislative process.

In recent days, state courts elsewhere have acknowledged the extraordinary

burden posed by the pandemic and granted equitable relief similar to the remedy

sought here. See, e.g., Robert Goldstein et al. v. Secretary of the Commonwealth,

Massachusetts Supreme Judicial Court (April 17, 2020) (order allowing

prospective candidates to collect electronic rather than “wet” signatures on

nomination papers).

In Florida and New Jersey, state executive officers have permitted electronic

12Available at https://tinyurl.com/DistCourtGenOrder-20-20.

8

signature gathering. See New Jersey Governor, Executive Order N. 105 (March 19,

2020) (“allowing voters to fill out and submit petitions electronically, so that

candidates and campaigns need not physically gather petitions by going to

individual voters in person, will help limit unnecessary person-to-person

contact”);13 and, Florida Secretary of State, Emergency Rule No. 1SER20-2 (April

3, 2020) (order modifying rule (Candidate Petition Process) allowing image of

voter’s original signature rather than requiring voters’ ink signature).14

B. The Institute of Health Metrics and Evaluation at the University of Washington Advises That Relaxing Social Distancing in Arizona May be Possible Only After June 8.

The authoritative Institute of Health Metrics and Evaluation (IHME) at the

University of Washington advises that in Arizona, “[a]fter June 8, 2020, relaxing

social distancing may be possible with containment strategies that include testing,

contact tracing, isolation, and limiting gathering size.”15 Our most highly-regarded

public health scientists urge continued quarantine restrictions for the foreseeable

future. See Kissler et al., Science 10.1126/science.abb5793 (2020) (To avoid

exceeding critical care capacities, “prolonged or intermittent social distancing may

13 https://nj.gov/state/elections/assets/pdf/candidate/EO-105.pdf. 14 https://dos.myflorida.com/media/702874/1ser20-2.pdf. 15 Guidance from the Institute of Health Metrics and Evaluation (University of

Washington) given on April 17, 2020. https://covid19.healthdata.org/united-states-of-america/arizona (last visited April 20, 2020).

9

be necessary into 2022.”).16

If the Governor (and Mayors) hold to this advice, the result will be 10 weeks

lost—in late March, April, May and early June—to gather petition signatures.

Even if the most hopeful view prevails, and the first stage of reopening starts on

May 1, the chance that crowds will gather—where signatures must be collected—

appears doubtful.

In truth, there is no clear end in sight. Each state—and perhaps city—will

chart its own path. Here, in Arizona, on Friday afternoon, April 17, Phoenix Mayor

Kate Gallego gave the following statement: “Currently, Arizona is not meeting the

criteria to proceed with a May 1 reopening. In order for us to meet these metrics we

need more widespread testing, including asymptomatic individuals, and a more

robust contact-tracing program.”17

Researchers at Harvard University’s Global Health Initiative agree. Based on

data pulled April 12 from the University of Washington’s IHME, they explain that

the U.S. must conduct “at least 500,000 tests for COVID-19 every day to be able

to successfully open the economy and stay open.” https://t.co/3Vtu3KSIWs.

Today, “about 150,000 tests per day are completed[.]” Id.

16 https://tinyurl.com/Science-Kissler-et-al at 5 (last visited April 18, 2020). 17 Full statement available at https://tinyurl.com/MayorGallego-

statement04172020.

10

Yesterday, the Arizona Republic quoted Dr. Mario Ramirez, former acting

director of the Office of Pandemic and Emerging Threats, who said that Arizona

needs to double the number of COVID-19 tests given each month to safely

reopen.18

Meanwhile, since March 15, the CDC has recommended the cancellation or

postponement of “community-wide mass gatherings” if the transmission level is

“minimal-to-moderate” and to cancel “mass gatherings of any size” if the level is

“substantial” through May 10 due to the coronavirus.19 That guidance remains in

effect today. Over the last several weeks, there have been countless closures and

cancellations in and around Arizona’s towns and cities, including these:

➢ All worship and other parish events in the Diocese of Phoenix until

further notice (https://dphx.org/stayhealthy/).

➢ City of Tempe’s downtown events (e.g., Downtown Festival of the Arts

(250,000 visitors) and 6th Street Market) through April

(https://www.downtowntempe.com/events/6th-street-market and

https://www.tempefestivalofthearts.com/).

➢ Phoenix Art Museum (closed until further notice)

18

https://tinyurl.com/AzCentral-Expert. 19 See https://www.cdc.gov/coronavirus/2019-ncov/community/large-

events/mass-gatherings-ready-for-covid-19.html (last visited April 19, 2020).

11

(https://phxart.org/events/).

➢ Phoenix Fan Fusion (postponed to September 2020)

(https://phoenixfanfusion.com).

➢ City of Flagstaff park spaces and amenities (closed until further notice)

(https://www.flagstaff.az.gov/4304/Closures-Proclamations-and-

Executive-Ord).

➢ Arizona State Science and Engineering Fair

(https://www.azscience.org/events-programs/arizona-science-

engineering-fair/students-registration).

➢ AZ Game & Fish Outdoor Expo (https://www.azgfd.com/azgfd-cancels-

2020-outdoor-expo).

➢ City of Buckeye Spring Celebration (April 4).

And on and on.

Only a vaccine offers the possibility of return to normalcy.20 But no one

expects a vaccine until the middle of next year and certainly not before July 2,

20 Science at 5 (“New therapeutics, vaccines, or other interventions such as

aggressive contact tracing and quarantine — impractical now in many places but more practical once case numbers have been reduced and testing scaled up— could alleviate the need for stringent social distancing to maintain control of the epidemic.”). https://science.sciencemag.org/content/sci/early/2020/04/14/science.abb5793.full.pdf.

12

2020, the deadline for the submission of initiative petitions.21 In Arizona, under the

Governor’s current executive orders, everyone must maintain recommended social

distancing practices through April 30. But, if the current restrictions hold through

early June, as suggested by the IMHE (University of Washington), petition

signatures cannot fairly and effectively be gathered without grave threat to the

public’s health in Arizona’s cities and towns.

Governor Ducey (and the Mayors) have taken strong steps to protect

essential commerce and public health, but the resulting disruption has been deep

and widespread. Under the CDC guidelines on social distancing, which remain in

effect, it is difficult for a signature collector to work door-to-door. Because the virus

survives on paper for some time, solicitation door-to-door and especially in large

crowds invites spread of the virus. In one recent report, scientists found that the

virus was “detectable in aerosols for up to three hours, up to four hours on copper,

up to 24 hours on cardboard and up to two to three days on plastic and stainless

steel.”22

21 See Washington Post report referring to “12 to 18 months” as the date a

vaccine might be available at https://tinyurl.com/WaPo03172020 (last visited April 18, 2020).

22 See the following news release summarizing this report:

https://tinyurl.com/NIH-Release (last visited April 19, 2020).

13

Circulators must witness every signature, but they cannot gather signatures

at large public gatherings—or door-to-door for that matter—given the means of

transmission, the strength of the virus, the depth of the public’s concern, and the

reach of Gov. Ducey’s orders. For these reasons, qualified voters cannot safely

register their support of—let alone consider—these important ballot proposals.

III. USE OF E-QUAL REASONABLY RESOLVES THE VIRUS’ THREATS TO

ARIZONANS’ HEALTH AND THEIR RIGHT TO INITIATIVE WITH NO

HARM TO THE STATE’S INTERESTS.

A. The E-Qual Online Portal for Gathering Signatures Substantially Complies with the Relevant Constitutional and Statutory Requirements.

Fortunately, the solution is at hand. The obvious and available remedy—

permitting initiative proponents to collect voters’ signatures online—already works

well in Arizona. In fact, since 2012, candidates for the state legislature have

collected nominating signatures online using the E-Qual internet portal.

1. E-Qual substantially complies with the state constitutional requirements for gathering and authenticating initiative signatures on “sheets.”

In Art. 4, Part 1, Section 1(9), the Arizona constitution requires that every

initiative petition “shall be addressed to the secretary of state in the case of

petitions for or on state measures[.]” And, “every sheet of every such petition [i.e.,

initiative petitions] containing signatures shall be verified by the affidavit of the

14

person who circulated said sheet or petition, setting forth that each of the names on

said sheet was signed in the presence of the affiant[.]”

Although the term “paper” appears nowhere in this section describing the

requirements for initiative petitions, “paper” does appear in the constitution’s

requirements for recall petitions: “The signatures to such recall petition need not

all be on one sheet of paper, but each signer must add to his signature the date of

his signing[.]” Art. 8, Part 1, Section 2 (emphasis added). Where, as here, different

language is used in different constitutional provisions, “we must infer that a

different meaning was intended.” State v. Hernandez, 244 Ariz. 1, 7, ¶ 29 (2018)

(Bolick, J., concurring). Under this straightforward reading of the text of Art. 4,

Part 1, Section 1(9), therefore, the constitution permits initiative signatures on both

electronic and paper “sheets.”

With these provisions, drafted in 1910, the Arizona constitutional delegates

established the right of initiative—by adopting a straightforward process for

signatures to be gathered and verified. But, importantly, the delegates did not

require “only paper” or even mention “paper” sheets for initiatives. They could

have done so. They knew how to require only “paper”—but did not do so. And

because they did not, this Court should conclude that the plain language of the

constitution prevents construction of the initiative-enabling provision to permit

15

only paper petitions. Cf. Stambaugh v. Killian, 242 Ariz. 508, 510, ¶ 10 (2017)

(directing use of common meaning when construing meaning of the law).

Because state constitutional delegates described “sheets,” without

specifying “paper,” or “only” paper, the State’s antiquated and cramped reading

of this key provision undermines rather than advances the purpose of the initiative

process. The more faithful reading of the requirements for the “[f]orm and

contents of initiative . . . petitions” found in Art. 4, Part 1, Sec. 1(9) permits the use

of “sheets” in digital form. Only Petitioners’ reading advances the right of

initiative and serves the drafters’ purpose: collection of initiative signatures in a

fixed, verifiable medium.

Sheets in digital form—web pages—do just that. Fortunately, in Arizona,

during the COVID-19 crisis, we have exactly what is needed to get the job done

immediately: the E-Qual portal. Today, the whole of government—not to mention

the private commercial world—accepts (and depends upon) digital signatures and

electronic documents. There should be no difference here.

Across the globe, documents appear on web pages rather than paper. In fact,

over the last 20 years, digital signatures in online documents have become

commonplace, including our appellate courts. Today, state and local governments

across the country, including Arizona, authorize the use of digital signatures and

16

electronic submission of documents. See, e.g., A.R.S. § 41-121(A)(12) (Secretary of

State shall “[a]ccept electronic and digital signatures that comply with section 18-

106 for documents filed with and by all state agencies, boards and commissions.”).

Under the current emergency, qualified electors should be permitted to sign

initiative petitions online. There is no constitutional hurdle here. The test adopted

by this Court for initiatives’ adherence to legal requirements—“substantial

compliance”—requires only that “the petition as circulated fulfills the purpose of

the relevant statutory or constitutional requirements, despite a lack of strict or

technical compliance.” Feldmeier v. Watson, 211 Ariz. 444, 447 (2005) (emphases

added). Under that formulation, E-Qual “fulfills the purpose of the relevant . . .

constitutional requirements” found in Art. 4, Part 1, Sec. 1(9):

• Presentation. No person would present the petition for the voter’s

signature; instead, the same petition would be presented directly to each

qualified elector online.

• Form. Neither the text nor the form of the petition itself would change

online. The same text, in the same font, displayed in the same format,

would reside online. Every qualified elector would see online in digital

form what would have been shown in person on paper sheets.

17

• Security. The Secretary’s website announces that the E-Qual portal is

“simple to use, secure, and convenient.” 23 No available report or

evidence suggests otherwise.

• Verification and authentication. The main opposing argument—lack of

in-person verification—is no objection at all. First, using E-Qual, each

elector would attest to and authenticate their own signature. Through the

online E-Qual portal, the Secretary would receive the signature of each

elector but only after every voter gains secure access to the E-Qual

system. Second, the Secretary's Declaration (¶ 12) expressly states that

the online system can require the signer to make any necessary

affirmations including that “the signer signed the E-Qual petition on the

signer’s own behalf in the signer’s own presence.”

The E-Qual system, in other words, easily complies with the state

constitutional requirements because, under this Court’s “substantial compliance”

test for initiative petitions, E-Qual (more suitably) fulfills the purpose of those

requirements—informed consideration of the proposal and secure verification of

voters’ signatures.

23 https://apps.azsos.gov/equal.

18

2. E-Qual satisfies the statutory requirement for “electronic filing” of initiative petition sheets.

The E-Qual system also complies with relevant statutory law. In A.R.S. §§

19-101 to -143, the statutory rules are set forth for initiative petitions. Under these

rules, each circulator carries a “signature sheet,” which the circulator presents for

signature by qualified electors.

➢ Electronic filing of petition sheets. Current Arizona law provides that “[t]he

secretary of state may prescribe the method of filing, including electronic

filing[]”of those initiative signature sheets. A.R.S. § 19-121(C) (emphasis

added). Given that statutory authorization, the signature sheets (A.R.S. § 19-

121) would legally reside online, in the same form, in the E-Qual system, as

prescribed by law, including “a full and correct copy of the title and text of

the measure,” A.R.S. § 19-121(A)(3), “in at least eight-point type,” § 19-

121(A)(4), in precisely the form described by law (A.R.S. § 19-102).

➢ Verification of signatures. The verification requirements, found in A.R.S. §

19-112(C) and (D), would also be met. Each elector would affirm their status

as a qualified elector, see A.R.S. § 19-112(C), and the Affidavit of the

Circulator, found in its statutory form, see A.R.S. § 19-112(D), would be

presented to each elector in the E-Qual portal, rather than presented in-

person by the circulator.

19

B. The Available Public Record Suggests No Threat of Fraud.

The Secretary concedes that E-Qual has the capacity to take online

signatures from qualified electors. Since 2012, E-Qual has worked well for state

legislative candidates. The State nevertheless argues that E-Qual cannot ensure

against fraud. But, no evidence supports this claim. Perhaps no report of fraud has

been received during the past 8 years because voters must first log on with their full

name, date of birth, and driver’s license number; or their voter registration number

and last four digits of their Social Security Number, which the screenshot of the

authentication page below confirms (apps.azsos.gov/equal).

Eight years ago, before they authorized their own use of E-Qual, legislative

candidates were required to gather signatures in person. No longer. By authorizing

their own use ofE-Qual, they cut out the circulator-just as Petitioners propose.

CONCLUSION AND REQUEST FOR RELIEF

Accordingly, and for the reasons stated in the Petitioners' brief, the Mayors

ask the Court to order (I) allowing the Secretary of State to grant Petitioners access

to the E-Qual electronic portal for the purpose of gathering signatures in support of

these initiatives; and, (2) limiting relief to this case before the Court, having no

effect for any election other than the general election scheduled for November 3,

2020.

RESPECTFULLY SUBMITTED this 20th day of April, 2020.

By~__________~~=-~__ awn K. Aiken

5090 ~~~ Street, Suite 207 Phoenr~rizona 85018

Attorney for Amt"ci Curt"ae Hon. Kate Gallego)· Hon. Coral Evans)· and) Hon. Regz"na Romero

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NOTICE OF ELECTRONIC FILING

The foregoing Brief of Amici Curiae was electronically filed this 20th day of

April, 2020 using the AZ Turbo Court electronic filing system and was served as

indicated in the separate Certificate of Service electronically filed this same date.

does not exceed the word

CERTIFICATE OF COMPLIANCE

This Certificate ofCompliance concerns:

1. An amici curiae brief and is submitted under ARCAP 16(b)( 4).

2. The undersigned certifies that the brief to which this certificate is attached uses type of at least 14 points, is double-spaced, and contains 3,855 words.

3. The document to which this Certificate is attac limit that is set by ARCAP 14(a)(4)./~

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