The Arizona law making it a crime to pay petition circulators for each signature they obtain has been declared unconstitutional by the Arizona Court of Appeals, which noted there are already other options in place to reduce concerns of fraud.
The unanimous opinion issued Tuesday overturns a June 2021 ruling by a Maricopa County judge who denied two motions by AZ Petition Partners LLC to dismiss a 50-count criminal complaint over the company’s method of paying people who circulate, or collect signatures on, certain election-related petitions.
AZ Petition Partners is a signature-gathering business that employees circulators to collect signatures for statewide initiative campaigns. In 2020, the company was contracted by a political action committee (PAC) to collect signatures on a petition for an initiative.
Workers who obtain the signatures are known as petition circulators. They were paid by AZ Petition Partners based on three pay scales, which circulators could fluctuate between depending on their productivity, how many hours worked, and “how the circulators conducted themselves,” according to court documents. The company also offered several incentive bonus programs to circulators, At issue is Arizona Revised Statutes 19-118.01 enacted by the Arizona Legislation
in 2017 making it a crime to “pay or receive money or any other thing of value based on the number of signatures collected” on a statewide initiative or referendum petition. Signatures obtained by a circulator who is paid in violation of the law are void.
Opponents to the initiative filed a lawsuit against the PAC in an effort to disqualify the initiative from the ballot, with one of the arguments being that AZ Petition Partners’ hourly rates and bonus incentive programs for circulators violated ARS 19-118.01. A Maricopa County judge ruled the hourly rates and one bonus program passed muster, but four other incentive programs appeared to violate state law.
The PAC’s initiative had enough valid signatures to make it to the ballot without counting the signatures from the circulators whose pay came under question. But AZ Petition Partners was then named in a 50 count criminal complaint for allegedly violating the statute.
The counts are Class 1 misdemeanors, subject to six months in jail for each conviction. In addition, the Arizona Attorney General’s Office alleges aggravating circumstances which puts the company at risk of a $5 million fine even though the total of all the disputed bonus payments was only $4,740.
AZ Petition Partners was denied its first motion to dismiss the criminal charges, then filed a second motion arguing 19-118.01 violates the First Amendment and is “vague and overbroad.”
The Maricopa County judge denied the second motion to dismiss, after AZ Petition Partners turned to the Arizona Court of Appeals with a petition for special action.
The move put prosecution of the criminal case on hold while a three-judge appellate panel reviewed the petition.
In a May 24 opinion, the court of appeals took a hard look at the company’s argument against the constitutionality of 19-118.01.
An act of the Legislature “is presumed constitutional, and where there is a reasonable, even though debatable, basis for enactment of the statute, the act will be upheld unless it is clearly unconstitutional,” Judge Michael J. Brown wrote in the opinion, adding that AZ Petition Partners had the burden to prove otherwise.
In its discussion of the issue, the appellate court noted that while the Attorney General did not prosecute the individual circulators who worked for AZ Petition Partners, they too could have been charged with a Class 1 misdemeanor. The mere possibility of substantial fines for the company as well as possible jail time for circulators “weighs in favor” of finding 19-118.01 imposes a severe burden First Amendment rights,” the opinion states.
The appellate court also found fault with the State’s argument that it is in the public’s best interest to ban paying circulators on a per-signature basis, given that the Supreme Court had previously advised against assuming professional circulators will engage in fraud.
“To properly evaluate the legitimacy and strength of the State’s interest in burdening First Amendment rights, it must provide some evidence that the burdensome restriction is necessary,” Brown wrote, adding that the legislation was enacted “with no specific proof” that it was needed to combat fraud.
“Thus, the State has not justified the burden it has placed on those seeking to collect signatures for an initiative petition by criminalizing any violation of § 19-118.01,” the opinion states. “We therefore hold that the misdemeanor provision of the statute [19-118.01(B)] is unenforceable because it violates the First Amendment.”
The appellate opinion grants AZ Petition Partners’ second motion to dismiss, which will lead to the criminal charges being dropped. The court of appeals also awarded the company reasonable attorney’s fees for prevailing in its petition for special action.
The opinion becomes effective in 30 days unless the State of Arizona petitions for review by the Arizona Supreme Court.