Judge: Lawmakers wrote illegally misleading summary of vouchers initiative

Tucson voters could receive a revised explanation of a proposed overhaul of Arizona’s private school voucher system after a judge ruled that state lawmakers wrote an illegally misleading summary of the measure. The decision concerns Proposition 212, an initiative that is scheduled to appear on the November ballot if it survives a separate legal challenge. Because the Legislative Council’s explanation is included in a brochure mailed to all 4.3 million registered voters in Arizona, the ruling could affect how voters across Tucson and the state understand the proposal before casting their ballots.

Maricopa County Superior Court Judge Daniel Martin ordered the Republican controlled Legislative Council to remove or rewrite language suggesting that the initiative’s organizers would be able to sue families and private schools participating in the Empowerment Scholarship Account program if they violated new rules created by Proposition 212. Martin said that interpretation does not accurately describe what the initiative would do. He directed the council to produce a new version by Aug. 21. A spokesman for House Speaker Steve Montenegro, the council’s chair, said attorneys for the Republican controlled Legislature were reviewing the ruling.

The dispute centers on the official explanation that appears in the voter pamphlet. State law requires the Legislative Council to provide an impartial description of a ballot measure, meaning the wording should explain the proposal’s effects honestly rather than repeat arguments from supporters or opponents. In this case, the council’s description said the Protect Education Now Committee would have “the power to sue the families and private schools” involved in the voucher program for violations of Proposition 212. Attorneys representing the committee argued that this wording falsely suggested families could face lawsuits simply for supporting or participating in the program.

Proposition 212 would make several changes to Arizona’s Empowerment Scholarship Account system, which uses public money to help students attend private or religious schools, or to receive home schooling. The initiative would establish additional oversight and spell out which purchases could and could not be made with voucher funds. It also would make students from families earning more than $150,000 ineligible for vouchers. For Tucson families considering private education, home schooling, or the use of public funds through an ESA, those changes could determine who qualifies and how the money may be spent.

The initiative does contain language giving the Protect Education committee a legal role, but the committee said lawmakers misstated what that role means. Under the measure, the committee would have the right to sue or intervene in a case to ensure that the initiative is enforced. It also could appear in court to defend the measure if someone else filed a lawsuit seeking to invalidate one of its provisions. The committee’s attorneys told Martin that those provisions do not authorize lawsuits against voucher families or schools for every alleged violation, as the council’s explanation implied.

Martin noted that courts usually give the Legislative Council considerable room to decide how ballot measures should be described. That discretion, he ruled, does not allow council members to use language that departs from the actual text of an initiative or presents a partisan argument as a neutral explanation. The judge found that the wording was sufficiently one sided to violate election law and ordered it removed or revised. The committee therefore won on the central complaint about the alleged threat of lawsuits, although the ruling did not accept all of its objections.

The decision does not yet guarantee that Tucson voters will see Proposition 212 on their ballots. Voucher supporters are separately challenging the measure’s qualification for the November election. Their attorneys argue that many people who collected the more than 421,000 signatures submitted for the initiative were not legally eligible to serve as petition circulators. If enough of those petitions are invalidated, the campaign could fall below the 255,949 valid signatures required to place the proposal before voters. That case is being heard by Maricopa County Superior Court Judge David McDowell, who is expected to rule by the end of the week.

The two court cases could shape both the availability of Proposition 212 to voters and the information voters receive if it remains on the ballot. A ruling that removes the measure would end the immediate debate over its wording, while a decision allowing it to proceed would require the Legislative Council to revise the statewide pamphlet before it is distributed. For Tucson residents, the issue reaches beyond campaign language. It involves the use of public money for private, religious, and home schooling, the eligibility of higher income families, and the level of oversight applied to Arizona’s expanding voucher system.

The legal fight also reflects a broader dispute over who should define the measure for voters. Supporters of Proposition 212 say its rules would increase accountability and limit how ESA funds are used. The Republican lawmakers’ explanation emphasized a potential legal threat that the initiative’s sponsors said was not actually created by the proposal. Martin’s ruling requires the official description to focus more closely on the initiative’s real provisions. Until the separate signature challenge is resolved, Tucson voters will have to wait to learn whether they will be deciding the voucher question in November, and if so, what revised explanation will arrive in their homes.