GOP leaders defend voucher measure: legal even if it bans all reforms

Republican legislative leaders deny that a measure they proposed was aimed at heading off a rival measure to regulate the state’s school voucher system – but say it would be constitutional even if it did. 

Voucher opponents are preoccupied with a clause in Proposition 145 that they say will nullify Proposition 212, the Protect Education Act, which seeks to place a series of regulations on Arizona’s school voucher program, attorneys for Senate President Warren Petersen and House Speaker Steve Montenegro wrote in their appeal to the Arizona Supreme Court.

They didn’t concede that their proposal actually does that, but said it doesn’t matter if it does.

“But assuming arguendo that this is true, so what?” attorney Thomas Basile wrote. “Even if (Prop. 145) preempted the entire field of ESA regulation — for example, if it stated something like: ‘no law may limit, abrogate, or abolish the Empowerment Scholarship Account program in any manner whatsoever’ — it would pose no constitutional conundrum.”

A trial court judge last month removed Prop. 145 from the ballot after concluding that it goes far beyond its stated purpose of protecting voucher money for schoolchildren that military families have saved for college tuition. The court said it would also ban any future reforms to the voucher system. 

And that, Maricopa County Superior Court Judge Joseph Kreamer ruled, is unconstitutional because it violates the Arizona Constitution’s Separate Amendment Rule, which demands that proposed constitutional amendments be limited to a single action.

The Republican lawmakers have appealed that ruling directly to the state Supreme Court. They say Kreamer made two fundamental errors in his analysis. 

First, he “elevated stylistic paragraphing and punctuation conventions to determinants of constitutional validity.” Kreamer held that the first section of the proposed amendment, which bars any confiscation of unspent voucher money that military families have saved for college tuition, “derives no meaning or effect from” the second section of the amendment — a clause voiding any law or voter-approved measure taking effect on or after Nov. 1, 2026 that conflicts with it.

That provision has been denounced by legislative Democrats and the backers of the Protect Education Act as a poison pill aimed at invalidating Prop. 212 even before voters get a chance to weigh in, and as a way to block any future voucher reforms.

Second, the GOP leaders said the trial court judge wrongly treated severability as a “freestanding fount of judicial or legislative power” instead of a “gesture of judicial restraint.” In his ruling, Kreamer wrote that lawmakers have never before tried to openly bar voters or future legislatures from enacting laws in the way they hoped to with Prop. 145, and that “it would potentially force the judiciary to invalidate laws that do not violate a constitutional right.”

But in their own filing with the Supreme Court, legislative Democrats said that Kreamer correctly found that the severability clause, which requires that the totality of any future law that violates any provision of Prop. 145 is deemed unconstitutional, is genuinely unprecedented.

Severability clauses are historically written to apply to the legislation in question: they order a court to allow parts of a law to go into effect even if a portion of the law is deemed invalid or unconstitutional. But the way Republicans crafted the severability clause in Prop. 145 turns that on its head and instead disallows severability in any future laws. 

And, Democratic caucus attorneys Rhonda Barnes and Elizabeth Higgins wrote, GOP lawmakers know how to craft a severability clause, as evidenced by the ones they placed in Proposition 144 and Proposition 318.

“In fact, there are no known instances of any legislature approving or asking voters to approve a statute or constitutional provision dictating such an antiseverability clause that would control future legislation,” they wrote, noting that “this clause is an attempt to tie the hands of future legislatures, the people, and the courts.”

And while the Republican legal defense disputes that the provision is aimed at Prop. 212, the Democratic brief notes that GOP lawmakers openly acknowledged that was their goal during a hurried debate on the measure in the final hours of the annual legislative session.

Rep. Michael Way, a Queen Creek Republican and the sponsor of the legislation, said the measure “strikes down such egregious measures, including the currently proposed anti-(voucher) ballot initiative.” 

And Senate Majority Leader John Kavanagh, a Republican from Fountain Hills, said that Democrats had brought this measure on themselves after they rejected an earlier compromise proposal that would have seen moderate voucher reforms enacted and the ballot initiative campaign scrapped.

“It makes a mockery of the very constitution that legislators swear an oath to uphold,” the Democrats wrote in their brief.

Two military veterans whose families would be affected, Robert Figueroa and Nick Kupper, a GOP state lawmaker, argued in their appeal brief that the trial court applied the wrong test: Instead of asking whether the two sections of the proposed amendment are “sufficiently interrelated,” it asked whether subsection B was “necessary” to subsection A, thereby “revers[ing] the burden of proof.”

“Voters are entitled to decide that ordinary severance is too weak a response to a law that confiscates military-family scholarship funds,” their attorneys from the Goldwater Institute, which drafted the constitutional amendment, argued.

The pro-voucher Arizona Free Enterprise Club also urged the court to reverse the trial judge, and argued that close calls on constitutionality should be resolved in favor of letting voters decide since removing something from the ballot “cannot be undone.”

“If it is merely debatable whether a referred amendment satisfies the separate amendment rule, the Court should permit it to appear on the ballot,” attorney Beau Roysden wrote.

School choice advocacy group EdChoice urged the Supreme Court to go even further and to reconsider Arizona’s entire approach to the Separate Amendment Rule. Instead of relying on making a distinction between “multiple amendments,” it should evaluate whether the amendments cover “multiple subjects.” Under the case law dating back to 1934, proposed constitutional amendments can be invalidated if they include multiple amendments, even if they all relate to the same subject — in this case, to school vouchers.

The Protect Education Accountability Now Committee, which is backing Prop. 212 and sued to block Prop. 145, has until the end of Monday to file its response brief in the appeal. 

All litigation surrounding the general election must be finalized by Aug. 20, the date that ballots will be sent to the printer.