The Arizona Supreme Court ruled Wednesday that a company which pays people to obtain signatures on election-related petitions is not being prosecuted under an unconstitutional law, but the company facing $5 million in criminal fines was still victorious because the justices found no evidence the company has violated the law.
AZ Petition Partners offers its petition circulators a regular compensation plan as well as various bonus or incentive programs. Two of the company’s bonus programs are tied to a number of factors, one of which is the number of signatures someone gathers.
The company is being prosecuted under Arizona Revised Statute 19-118.01(A), which makes it a crime for anyone 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.
Under the statute, an employee, employer, or both can be prosecuted for a Class 1 misdemeanor.
Then-Arizona Attorney General Mark Brnovich filed 50 charges against the company last year for allegedly violating the statute, which typically has a maximum fine of $20,000 per count. The attorney general’s office did not prosecute the employees.
Brnovich’s office also alleged aggravating factors, which means the company was facing a potential criminal fine of $100,000 per count, or $5 million total, if convicted.
But ARS 19-118.01 does not apply to AZ Petition Partners’ bonus programs, according to the unanimous opinion authored by Justice Clint Bolick.
“The mechanism at issue here – per-signature payments – may be an efficient way of incentivizing signature collection, however, it may also be susceptible to abuse,” Bolick wrote. “As we clarify here, the statute forbids only per-signature compensation, leaving other productivity-based compensation intact.”
An Arizona Court of Appeals decision from last year agreed with the company that ARS 19-118.01 was unconstitutional on First Amendment grounds and thus the criminal charges should be dismissed.
Brnovich then asked the Arizona Supreme Court to review the matter, and current Attorney General Kris Mayes did not seek to change course upon taking office in January.
The parties argued the case to the justices earlier this year and have been eagerly awaiting an opinion given that several initiative and referendum petitions will be circulated across the state in the coming months on various political issues.
Signatures obtained by a paid circulator in violation of state law are void and cannot be counted in determining the legal sufficiency of the petition.
The June 21 unanimous opinion authored by Justice Clint Bolick rejected AZ Petition Partners’ constitutional challenge, finding that 19-118.01 “is not vague on its face, as permissible and prohibited conduct are clearly demarcated.”
At the same time, the justices rejected arguments from the attorney general’s office that the statute bars more than simple per-signature compensation.
The State’s position is “erroneous,” Bolick wrote, as the statute “is clear that only per-signature payments are prohibited.”
The opinion makes clear ARS 19-118.01 cannot be used to prosecute the company for bonus programs that are not based solely on a per-signature basis. As a result, the justices remanded the matter back to the Maricopa County Superior Court for reconsideration of a motion by AZ Petition Partners to dismiss the 50 criminal charges.
Bolick outlined some of the legal questions the justices had to address to get to their decision.
He noted that in looking to various case law –including one from 120 years ago– the Court began its review “by recognizing that the right of the people to initiate legislation and constitutional change is central to Arizona’s political heritage.”
As such, gathering signatures to qualify measures for the ballot is a core political expression protected by the First Amendment, he noted.
But the justices also recognized the right to place an initiative or referendum measure on the ballot is not absolute and that “substantial regulation of elections” is necessary to ensure fair and honest elections.
This guarantees “some sort of order, rather than chaos” accompanies the democratic process, the opinion states.
Other Western states, such as Oregon and Montana, similarly prohibit compensation to circulators when based solely on the number of signature collected. The laws in those states have been upheld in federal court, Bolick wrote in the opinion.