Judge's ruling puts AZ vouchers reform measure in doubt; now up to high court

For Tucson families and schools, the question of whether Arizona voters will get to weigh in on the state’s private school voucher system now rests with the Arizona Supreme Court. A trial judge ruled that a proposed reform initiative is roughly 10,000 valid signatures short of the number required for the November ballot, but the high court has not issued its final decision. The justices must determine whether the signature counting method used by the lower court was legally sound, and they have indicated that a ruling is needed before ballots are printed Thursday.

The initiative, identified as Proposition 212 and also called the Protect Education Now or Protect Education Accountability Act, would make several changes to Arizona’s 15 year old Empowerment Scholarship Account program. It would limit enrollment according to family income, bar spending on luxury items, require academic testing and strengthen safety and security standards for participating educators and private schools. The proposed changes could affect Tucson area families using the accounts, as well as public schools that supporters say are losing funding as the voucher system expands.

Arizona’s ESA program was broadened in 2022 to make every Arizona student eligible for roughly $7,500 per year for private or religious school tuition, homeschooling and other approved expenses. The program has since grown to more than 100,000 students and costs more than $1 billion annually. Supporters of the reform measure argue that public education is being deprived of money and point to reports of parents using ESA funds for items such as lingerie, jewelry and trips to theme parks outside Arizona, which they say are not educational purchases.

The committee supporting the initiative submitted 415,438 signatures by the July 2 deadline. To qualify for the ballot, at least 255,949 signatures from valid voters must be counted. Opponents, including the American Federation for Children and the Arizona Free Enterprise Club, challenged the petitions in court, arguing that too many people who circulated them were ineligible. Maricopa County Superior Court Judge David McDowell agreed that at least some circulators were disqualified and removed the petitions and signatures associated with them. Even after that decision, the campaign initially appeared to have enough signatures to proceed.

The remaining question involved a statewide statistical review. Each of Arizona’s 15 county recorders examined a random sample equal to 5 percent of the signatures submitted in that county. Judge McDowell then created a formula for projecting the total number of valid signatures using the counties’ results and a statewide validity rate. Kory Langhofer, representing voucher advocates and parents who challenged the initiative, said the measure would fail if that statewide rate fell below 78.3 percent. He said the current average is about 75 percent, although revisions from some counties could change the result slightly.

Using McDowell’s formula, the initiative is projected to fall short by approximately 10,000 signatures. The American Federation for Children and the Arizona Free Enterprise Club quickly claimed the ruling as a victory. Scot Mussi, president of the Arizona Free Enterprise Club, described it as a major win for parents, students and election integrity. Tommy Schultz, the federation’s chief executive, said his group made a substantial six figure investment in the legal challenge and was prepared to spend more than $6 million defending the ESA program and opposing the unions.

House Speaker Steve Montenegro, a Goodyear Republican and ESA supporter, also celebrated the ruling, saying teacher unions had challenged Arizona parents and lost. The organizations opposing the initiative have portrayed the effort as an attack on the voucher program and have made clear they intend to continue fighting it if the measure reaches voters. Their arguments place the dispute within Arizona’s broader political battle over whether public money should follow students to private and religious schools, or remain focused on public education systems serving communities such as Tucson.

Supporters of the initiative say the court fight is not over. Olivia Fierro, communications manager for the campaign, warned people not to accept claims that the measure is dead and said it remains on the ballot for now. Jim Barton, an attorney representing educators and the state teachers union, argues that McDowell’s calculation can improperly eliminate valid signatures. His concern centers on duplicate signatures, which he says may be counted as invalid more than once, reducing the total beyond what the evidence supports.

Barton is asking the Supreme Court to resolve any uncertainty in favor of counting signatures and allowing voters to decide. He says the counties cannot conduct a line by line review before Thursday’s ballot printing deadline, and proposes that duplicate signatures not be included in the final calculation. Under that approach, he says the initiative would have at least 316,993 valid signatures, comfortably above the qualification threshold. Langhofer and attorney Thomas Basile oppose that request, arguing it could place an initiative on the ballot even though the court had determined that it contained fewer than the constitutionally required number of valid signatures.

The two sides agree that the outcome depends on the formula, not on whether the initiative’s supporters submitted a large number of petitions. If duplicate signatures are treated as valid and the county validity rates are applied, the measure qualifies. If duplicate signatures are removed, credits are applied for duplicates found in county reviews, and the resulting rate is then used, it falls short. The Supreme Court has not said exactly when it will rule, leaving Tucson voters, educators, private school families and public school advocates waiting to learn whether the proposed voucher restrictions will appear on November ballots.