Protecting the Strict Compliance Standard

The Arizona Constitution protects the power of initiative—but also leaves the Legislature with “the right to enact any measure,” so long as it does not “supersede” an enacted initiative. That means the Legislature has the authority to set the rules for how initiative petitions are circulated and how initiatives are voted on. More than that: The Arizona Constitution requires the Legislature to pass laws to ensure the “purity of elections.” And it’s done so, by passing laws that specify exactly how initiative petitions should be written, signed, and submitted, and by requiring that those rules by complied with “strictly.”

But in August 2018, a trial court judge ruled that this “strict compliance” standard is unconstitutional, because it limits the initiative power and because it violates the separation of powers. The Arizona Supreme Court took the case up on an emergency schedule so that it could issue a decision in time for the elections. We filed a friend of the court brief arguing that the strict compliance rule is constitutional, not only because the state’s highest law requires the Legislature to provide for a fair and honest election system, but also because it provides a helpful check against possible abuse of the initiative process. That process can be a dangerous one for taxpayers and for vulnerable minorities, and the authors of Arizona’s Constitution were aware of the risks. That’s why they chose to create what one constitutional convention delegate called “a safe and operative initiative and referendum, containing such details as will guard our legislature.” By striking a careful balance between the initiative power and the Legislature’s authority to regulate how initiatives are circulated and voted upon, Arizona’s founding fathers helped to guard against political abuses. That’s why the strict compliance rule isn’t a violation of separation of powers, but an example of separation of powers.