Sun, Dec. 15

Court allows Prop. 204 to move forward

Ken Bennett

Ken Bennett

PHOENIX -- Arizonans will get a chance to decide if they want to keep state sales taxes as high as they are now.

But it remains to be seen exactly how the measure will be described to voters.

In a brief order Tuesday, the state Supreme Court said an error made by backers of Proposition 204 in prefiling the language with the Secretary of State's Office was not enough to disqualify the measure from the November ballot. The justices said that initiative supporters "substantially complied' with the legal requirements to begin circulating petitions.

Tuesday's ruling all but clears the path to putting the question of a permanent 6.6 percent state sales tax on the ballot.

County election officials continue to verify that the measure has at least 172,809 valid signatures necessary to qualify for the ballot. But estimates from random samples show that is not likely to be a problem.

Still to be decided, though, is whether the initiative will be described as a tax "increase' in the ballot pamphlet mailed out ahead of the November election to all households where there are registered voters.

That was the language crafted by the Legislative Council, a committee dominated by Republican lawmakers, to explain the effect of the measure. Michael Braun, the council's staff director, said it is a new levy on the state's base rate of 5.6 percent.

But Maricopa County Superior Court Judge John Rea, ruling in a separate lawsuit, said it is misleading to use the word "increase' without pointing out that the tax rate already is 6.6 percent. Rea said voters must also be informed that if Proposition 204 is passed, it would take effect on June 1, 2013, the day after the temporary one-cent surcharge approved by voters in 2010 is set to expire.

That decision has been appealed to the Supreme Court.

The initiative is designed to raise about $1 billion a year initially.

Most of the cash would go to support K-12 education, with some of the additional funding automatic and some tied to performance standards. There also is money for university operations and scholarships, health care for the children of the working poor, and road construction projects.

There also are various tiers of how additional funds would be divvied up.

The fight surrounds a requirement in Arizona law that anyone seeking a change in state law through the initiative process must first file a copy of the text with the Secretary of State's Office.

Months after that filing, however, Secretary of State Ken Bennett said he realized that the paperwork given to him differed from what was being circulated.

Specifically, Bennett pointed out that prefiled language did not mention one of those tiers affecting who gets a chunk of $350 million if there is extra cash. So he said the measure could not be on the ballot.

Backers sued, pointing out that they did give Bennett's staff an accurate version, albeit on computer disk.

Maricopa County Superior Court Robert Oberbillig ruled that the incorrect paper version amounted to a clerical error and ordered Bennett to process the measure. Tuesday's ruling rebuffs Bennett's appeal of that order.

Ann-Eve Pedersen, who chairs the initiative committee, said she believes that Bennett, a Republican, had a political motive for challenging the measure and filing the appeal.

"It's important that people in his position (as the state's chief election officer) remain neutral and not allow outside forces to influence what really should be unbiased decision making,' she said.

Bennett said that not the case.

"This was never about trying to keep something on or off the ballot,' he said.

"Our focus was to make sure that state law was complied with,' Bennett explained. "We felt that they had not.'

Bennett also said he sees Tuesday's Supreme Court ruling as a victory of sorts.

Oberbillig, in his original order, ruled the initiative supporters were in absolute compliance with state election laws despite the failure to file an identical text version. More to the point, the judge chided Bennett, saying it was "arbitrary and capricious' of him not to allow those circulating the petition to substitute a corrected version of the prefiled initiative.

The high court, however, said Proposition 204 supporters "substantially complied' with the law.

"That's very different than what the lower court said, which is that we acted arbitrarily, we failed to perform our duty and that they fully complied with the constitution,' he said.

The justices gave no indication when they will rule on the separate legal battle between Pedersen's group and the GOP-dominated Legislative Council.

Pedersen acknowledged that the Supreme Court could overrule Rea and allow the council to describe Proposition 204 as a tax increase without mentioning the expiration of the current surcharge.

"I don't think it kills it,' she said of that possibility. But Pedersen said she believes the high court will deliver another victory within weeks to Proposition 204 supporters on this issue.

"The Legislative Council has a long history of trying to inject biased or misleading information into the publicity pamphlet language,' she said. "And the court has ruled in the past they can't do that.'

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