High court rejects bid to give voucher-protecting Prop. 145 ruling lasting weight

The Arizona Supreme Court on Thursday declined to make its ruling last month that kicked a GOP measure to protect school vouchers off the ballot into binding precedent, rejecting a request from Attorney General Kris Mayes to do so.

The measure, Proposition 145, was billed as amending the Arizona Constitution to protect the voucher money given to students whose parents are in the military, but a trial court judge and the Supreme Court unanimously concluded that it also would have unconstitutionally banned nearly all future attempts to regulate private school vouchers or limit their use.

That’s because it amounted to two separate constitutional amendments on a single measure, something the constitution bans.

In drafting Prop. 145, GOP lawmakers tried a novel way of using what’s referred to as a “severability clause” that effectively weaponized it against all future voucher regulation. Such clauses are common, but they always focus on the measure at hand, and effectively direct courts to salvage as much of the proposal as possible if a component of it is later deemed unconstitutional or otherwise illegal. 

But in Prop. 145, that severability clause was designed to apply to how courts deal with all other future legislation that affects Empowerment Scholarship Accounts, the formal name for Arizona’s school voucher program. It said that if any law in the future in any way diminished the voucher funding for military families, the courts were required to throw out the entire law — even the provisions that would otherwise be left intact because they were constitutional.

Chief Justice Ann Scott Timmer, writing for the high court, agreed that Prop. 145 violates the single subject rule. The severability clause section doesn’t just exist to enforce the part that protects military family vouchers, she wrote, but it also serves to nullify laws that have nothing to do with the ESA accounts of military families. 

“While both affect substantive law, the provisions do not share a logical relationship or derive meaning and effect from each other,” Timmer concluded.

But the court’s order kicking Prop. 145 off the ballot doesn’t hold any precedent and can’t be cited in future legal disputes over ballot measures. 

This week, Mayes’ office requested that the justices make their decision official, which would have allowed courts interpreting the legality of similar cases to point to the case against Prop. 145 as a precedent. 

“The question of whether proposed constitutional amendments comply with the Separate Amendment Rule is plainly one of substantial public importance that may recur whenever a proposed amendment is referred to the ballot,” wrote Nathan Arrowsmith, the deputy chief counsel for the Arizona Solicitor General’s Office. 

Because the high court’s ruling established that the bid by Republican lawmakers to shoehorn in a provision nullifying ballot initiatives in their entirety if they violate the protections in Prop. 145 goes too far, the ruling could have given judges from lower courts across the state the legal reasoning to slap down similar attempts to eliminate ideological rivals. 

But the high court rejected the request, leaving the ruling in place only for the case involving Prop. 145. Timmer wrote that the order can’t create a precedent because it isn’t the result of a full case; the justices considered the legal arguments after an expedited briefing schedule and didn’t hear oral arguments.  

“Decision orders are summary dispositions, often entered on an expedited basis and without oral argument,” she wrote.