Ruling: Arizona ballot measure description illegal

For Tucson voters, the dispute could affect what appears on November ballots and whether they are asked to decide the future of Arizona’s school voucher program through one or more separate measures. A Maricopa County judge ruled Friday that Secretary of State Adrian Fontes used unlawful language in describing Proposition 145, a proposal intended to protect Empowerment Scholarship Accounts for children in military families. The ruling ordered Fontes to rewrite the ballot description and remove its reference to Proposition 212, a separate voucher reform initiative.

The decision concerns the wording voters would see on ballots mailed to their homes or handed to them at polling places. State law requires the secretary of state to describe the effect each ballot measure would have on existing law. Fontes’ description said that approving Proposition 145 would nullify Proposition 212, regardless of whether voters approved or rejected Proposition 212. Maricopa County Superior Judge David McDowell ruled that wording violated the law because Proposition 212 is not yet part of existing law. It remains a proposal until the election results are counted.

McDowell acknowledged that Proposition 145 contains language that could have consequences for Proposition 212 if both measures were approved. Proposition 145 would constitutionally protect the ability of military families’ children to receive Empowerment Scholarship Accounts. Its language also says that any other law affecting voucher funds for those children would be voided in its entirety if Proposition 145 passes. Voucher supporters have acknowledged that provision, described by critics as a “poison pill,” was included in the measure.

The conflict is tied to the way Proposition 212 would change the voucher program. One part of that initiative would stop families, including military families, from saving unused voucher money for future college expenses. Other provisions would restrict spending on items such as jewelry and amusement park trips, and would deny vouchers to students whose parents earn more than $150,000 annually. If both measures passed, Proposition 145 could therefore invalidate all of Proposition 212, rather than only the provision concerning the banking of unused funds.

McDowell did not rule on why the Proposition 145 language was written that way, nor did he decide whether Fontes had chosen the most reasonable description. Instead, he focused on whether the description was accurate, not misleading and consistent with the secretary’s statutory responsibilities. His conclusion was that Fontes could not describe the effect of Proposition 145 on a proposal that might never become law. If Proposition 212 fails, the judge wrote, Proposition 145 would have nothing to nullify.

Fontes’ office has not accepted the ruling without reservation. Calli Jones, a spokeswoman for Fontes, said the secretary is considering whether to ask the Arizona Supreme Court to review the decision. She said the office stands by including language about the effect of a yes vote on the citizen initiative, arguing that Proposition 145 specifically contains provisions that would nullify Proposition 212. For Tucson residents, any appeal could determine whether the revised language is used, whether the original wording returns, or whether the ballot description changes again before voting begins.

The measure also faces a separate legal challenge that could determine whether it appears on the ballot at all. Another Maricopa County judge previously ruled that Proposition 145 improperly combines two distinct constitutional issues, forcing voters into a single take it or leave it choice. That ruling is also being appealed to the Arizona Supreme Court. A separate report identified the legislative measure as House Concurrent Resolution 2048 and said a judge ruled it improperly bundled protections for military families’ voucher funds with language that would nullify future voter-approved voucher reforms.

The broader disagreement reflects a long-running battle over Arizona’s Empowerment Scholarship Account program, which provides public funds for eligible students to use for private education and other approved expenses. Beth Lewis of Save Our Schools Arizona described the Protect Education Act, identified as Proposition 212, as a reform of the existing roughly $1 billion program. She said it would add safety, academic accountability and transparency requirements while addressing alleged waste, fraud and abuse. The American Federation for Children, which supports school choice, said voters have shown interest in reasonable reforms, but spokesman Brian Jodice argued that the initiative could go much further and potentially remove the program from 100,000 children, harming participating private schools.

The voucher dispute is unfolding alongside another ballot case involving House Concurrent Resolution 2040. A judge ruled that measure also improperly combined separate issues, including prohibiting school districts from using public money or resources to support unions and barring state and local governments from entering collective bargaining agreements with labor unions. The Arizona Education Association responded that protecting educators would require electing pro-education candidates. Both measures were championed by Senate President Warren Peterson, the Republican nominee for Arizona’s top attorney position, who did not respond to a request for comment. Appeals remain possible, so the final shape of the November ballot may not be settled until the courts act again.