Arizona Ballot Measure Would Make It Harder to Amend State Constitution

The 2024 election will put dozens of questions before voters on issues from abortion to marijuana legalization to taxes.

Ballot measures focused on reproductive rights in particular have gained attention since the Supreme Court overturned Roe v. Wade. But some proposed state constitutional amendments that could dramatically impact rights appear, on the surface, to be simple procedural changes. Chief among those are amendments that seek to curb future amendments by making it harder for changes to get on the ballot in the first place.

Voters in Arizona will consider just such a measure in this year’s election: a provision that would amend the state constitution to establish a signature distribution requirement for citizen-initiated constitutional amendments.

Fewer than half the states — including Arizona — allow voter-initiated amendments to the state constitution. Arizona’s constitution outlines the initiative process through which voters may propose laws or constitutional amendments. The state currently requires citizens to collect a number of signatures equal to 15 percent of the votes cast in the previous gubernatorial election to place a proposed constitutional amendment on the ballot and 10 percent to place a proposed statute on the ballot. These signatures may come from anywhere in the state. The signature distribution amendment would maintain the percentage figures but would call for voters to reach these thresholds in every legislative district rather than on a statewide basis.

A signature distribution requirement may seem to be a mere process detail. But in reality, the ballot measure represents yet another front in the partisan battle to gain control of the closely divided state. That’s because it is a way of stopping citizens in high-population districts — namely, Maricopa County, which leans Democratic — from getting initiatives on the ballot without the buy-in of more rural, redder districts. It’s not surprising, then, that the measure passed in the legislature on a purely partisan basis, with all Republican lawmakers voting for it and all Democratic lawmakers voting against.

Geographic distribution requirements are not new, but they have increasingly become another political battleground over the past quarter century as state legislators alter the initiative and referendum process for partisan gains. If voters approve the measure in Arizona, it will be the 17th state to impose a geographic requirement to the process of introducing voter-initiated statutes and constitutional amendments. Such geographic requirements have most frequently been passed by legislatures, not put to voters as potential constitutional amendments. Many of these efforts have been struck down on state constitutional grounds.

The principles governing signature (or geographic) distribution requirements begin with the Supreme Court’s 1962 ruling Baker v. Carr. Along with its progeny, the case established the one-person, one-vote principle governing legislative districts. Some state courts rely on Baker and its line of cases directly in analyzing geographic signature requirements. Others focus more heavily on state constitutions and state judicial precedents. These cases still tend to focus on the very factors the Baker court considered back in 1962: the rural-urban divide and its concomitant principle of safeguarding the will of voting majorities. But due to the political allegiances now associated with rural and urban voters, recent bills promoting geographic distribution requirements have a far larger partisan bent than the distorted legislative districts the courts confronted in the 1960s. 

The Utah Supreme Court was sensitive to these political realities in Gallivan v. Walker, a 2002 ruling striking down legislation requiring signatures from 10 percent of voters from at least 20 of the state’s 29 counties. The court first declared the initiative and referendum process a “sacrosanct and fundamental right,” like the right to vote. Because a fundamental right was involved, the court applied a “heightened degree of scrutiny.” In Utah, any law that “discriminates against a person’s constitutionally protected . . . right” must be “reasonable,” have “more than a speculative tendency to further the legislative objective,” and should be “reasonably necessary to further a legitimate legislative goal.” The court concluded that the bill failed this test.

The court found that the law also ran afoul of Utah’s constitutional requirement that laws “have uniform operation,” a provision the court compared to the U.S. Constitution’s 14th Amendment requiring people who are “similarly situated” to be “treated similarly.” The rural-urban population divide in the state stood at the center of the court’s analysis. Four counties in the Salt Lake metropolitan area accounted for three fourths of the state’s population. “The multi-county signature requirement does not apply equally to the subclasses of rural and urban registered voters,” the court held, “and in effect creates a discriminatory classification because of its disparate impact.” Treating each county in the same manner despite the “widely varied populations” constituted “invidious discrimination” in favor of rural over urban counties.

In 2019, however, Utah’s supreme court allowed a geographic signature requirement to stand. Unlike the statute it had struck down in Gallivan nearly two decades earlier, which was based on counties with divergent population figures, a more recent state law required signatures from ten percent of voters from all the state’s senate districts. Because these “districts . . . have roughly equal populations,” the Utah court concluded in Count My Vote, Inc. v. Cox, there were no violations of the “one-person, one-vote principle.”

Idaho’s highest court, meanwhile, arrived at the opposite conclusion in Reclaim Idaho v. Denney, a case that had similarities to Cox. Prior to a bill enacted in 2021, Idaho law required signatures equal to six percent of registered voters at the time of the last general election, coming from 18 of 35 legislative districts. The 2021 proposal imposed the same 6 percent requirement on all 35 legislative districts. Following a determination that this legislative action infringed upon a “fundamental right,” the court applied strict scrutiny and held the measure violated the state constitution’s provisions governing referenda and initiatives.

In 2022’s League of Women Voters of Michigan v. Secretary of State, the Michigan Supreme Court also rejected a geographic signature requirement. The law imposed a requirement that no voter-led initiative could have more than 15 percent of its signatures from any one of the state’s congressional districts. The court pointed out that the state constitutional provision governing initiatives and referenda contained no geographic distribution requirement. The legislature was empowered only to adopt rules that furthered the principles set forth in the constitution, the court said — and the 15 percent requirement improperly added a “substantive obligation.” The cap would also disenfranchise voters in more densely populated parts of the state by rendering void signatures obtained after the 15 percent threshold had been reached.

While cognizant of the rural-urban dynamics associated with geographic signature requirements, both the Idaho and Michigan courts offered a broader protection of majority rule. The selection of a “statewide minimum number of signatures without a geographic cap,” the court held in League of Women Voters, allowed a “relatively small coalition of voters from a concentrated geographic area to propose” an initiative. Michigan’s constitution, the court went on, “requires nothing more than this minimum level of support.” Likewise, the court in Denney concluded that there was “little evidentiary or logical support for the position that the state has a compelling interest in ensuring that initiatives and referenda demonstrate a threshold level of support in every legislative district before qualifying for the ballot.” Moreover, the court added, the proposal requiring a threshold of support in every legislative district improperly granted voters in any legislative district “veto power” over proposed legislation.

The fact that Arizona’s ballot proposal would amend the state’s constitution rather than institute a statutory change differentiates this geographic distribution requirement from others. Most significantly, an amendment is insulated from the state constitutional challenges to which legislation is vulnerable. But one thing is certain: the measure represents a high-stakes round in the ongoing battle over policy — one that could have deep implications for democracy.

Michael Bobelian is an attorney and the author of Battle for the Marble Palace: Abe Fortas, Earl Warren, Lyndon Johnson, Richard Nixon and the Forging of the Modern Supreme Court.