School choice reform backers sue to block ballot measure

Audio By Carbonatix

(The Center Square) - Supporters of a ballot measure to reform Arizona’s school choice program are attempting to prevent another measure that they say would render their initiative ineffective.

The Protect Education Accountability Now Committee and Save Our Schools Arizona sued the state over House Concurrent Resolution 2048, also known as the Military Families College Savings and Scholarship Protection Act.

HCR 2048 provides Arizona voters with the opportunity to decide whether to amend the Arizona Constitution to prevent the state government from removing state-run scholarship and savings account funds from the accounts of children of military families.

The ballot measure will appear on the Nov. 3 ballot after being passed by the state Legislature.  

Adam Shelton, senior staff attorney for the Phoenix-based Goldwater Institute, told The Center Square on Wednesday that the legal challenge will move quickly because it targets a ballot measure. He added that Judge Joseph Kreamer, who is handling the case, has set a July 9 deadline for all briefs and a July 24 hearing.

The plaintiffs in the lawsuit claim HCR 2048 is “deliberately designed to subvert the very democratic process it invokes.”

“Using military families as a ruse, HCR 2048’s purpose and effect are to both void the pending citizens’ initiative to reform Arizona’s [Empowerment Scholarship Accounts] program – the Protect Education Act – and to impede future reform of the ESA program by the people or by the Legislature,” the lawsuit says.

According to the lawsuit, HCR 2048 is unconstitutional because it “violates the separate amendment rule … of the Arizona Constitution” and because its subjects are not expressed in its title, which violates the No-Severance Provision of the state Constitution.

The plaintiffs say HCR 2048 contains a provision they describe as a “sweeping and unrelated structural command” that will “void … any future law or voter-approved initiative the Legislature dislikes and would strip Arizona’s courts of their historic power to sever the offending provision while saving the rest.”

Regarding HCR 2048’s title, the plaintiffs say it does not disclose that it would also “void in its entirety any future bill or voter-approved initiative deemed to violate the measure, while barring courts from severing the offending portion.”

“HCR 2048’s constitutional infirmities are no incidental drafting flaws, but the mechanism for accomplishing the measure’s true objective of defeating the Protect Education Act – even if voters approve it,” the lawsuit says.

The plaintiffs are asking the Arizona Superior Court to prevent HCR 2048 from appearing on the November ballot by ruling it unconstitutional.

The Center Square reached out to The Protect Education Accountability Now Committee, but it declined to comment on the lawsuit.

According to Shelton, the lawsuit’s argument that HCR 2048 violates “the title requirement of the Arizona Constitution” doesn’t apply to legislatively referred constitutional amendments.

Shelton told The Center Square that the Goldwater Institute is disappointed to see organizations oppose the Nov. 3 ballot's military families measure. But he added he is “not entirely surprised.”

The Goldwater Institute has filed a motion to intervene in the case on behalf of two Arizona parents, including one parent whose family receives money through the military portion of the ESA.

Shelton said the Goldwater Institute argued in its legal filing that there is only one amendment, not two. He added that the amendment’s purpose is “to protect military families.”

The plaintiffs are “really focused on restricting the ESA program,” the attorney explained.

Shelton said the Goldwater Institute looks forward to “helping defend the measure in court.”