PHOENIX --Insisting the trial judge got it wrong, Secretary of State Ken Bennett decided Monday to ask the Arizona Supreme Court to keep the sales tax initiative off the November ballot. And he has hired an expert in elections law to make his case.
Bennett said organizers of the Quality Jobs and Education did not comply with the constitutional and statutory requirements for filing initiatives. He said that left him no choice but to conclude it could not go to voters.
But Ann-Eve Pedersen, who is spearheading the initiative, said Maricopa County Superior Court Judge Robert Oberbillig was correct in his ruling last week that Bennett was being "arbitrary" in rejecting petitions with 290,000 names because of what the judge called a "photocopy error."
In some ways, the decision is a surprise.
In op-ed piece nearly two weeks ago in the Arizona Daily Star, Bennett wrote that if the trial judge ruled in favor of initiative organizers "our office will complete our work and place the measure on the ballot."
But Bennett said Monday that it would be negligent of him to let Oberbillig's ruling, issued Friday, stand.
"To leave the lower court ruling in place I think risks huge voter confusion, huge confusion with our offices and other filing offices as far as how we're supposed to process these initiatives," he told Capitol Media Services. But there clearly also is an issue that Bennett thinks Oberbillig was unfair.
"We believe very strongly that we followed the law precisely," he said. "And it's frustrating to have in response a ruling that says we were arbitrary and didn't perform our duties."
Last week Bennett's office was represented solely by the Attorney General's Office. This week Bennett hired Joe Kanefield, a former state elections director now in private practice, to make the state's case to reject the petitions to the high court.
The measure seeks to ask voters to approve a state law to make permanent a one-cent surcharge in the state's 5.6 percent sales tax. A temporary levy approved in 2010 self-destructs this coming May.
Backers have laid out in detail where the proceeds should go, with most earmarked for K-12 education and other funds set aside for everything from road construction to health care for children.
State law requires organizers to prefile a copy of the initiative with Bennett's office before gathering signatures.
A paper copy contained a different distribution formula for about $350 million of the proceeds; an electronic version filed on disk had the formula identical to the one attached to the petitions and circulated.
Bennett said the discrepancy between the paper version and what was shown to voters invalidates the entire petition drive. Oberbillig disagreed, saying Bennett should have allowed organizers to correct the error when it was discovered.
But Bennett said it's not that simple. And he said the statute does not recognize electronic copies.
As proof, he pointed to a section of the law which says that the application for an initiative, along with a copy of the text, must be filed "on a form to be provided by the secretary of state." That form, said Bennett, is the paper one.
Pedersen, whose group has hired former Supreme Court Justice Stanley Feldman, said Bennett is wrong.
Even if the statute does require a paper copy -- a point she is not conceding -- there is no such mandate in the Arizona Constitution.
"So the Legislature can't enact laws, bureaucrats can't enact procedures that supersede the Arizona Constitution," she said. "How do you get around that?"
Bennett, however, said he reads the constitutional requirements different.
Pedersen also said that deciding that only paper-filed copies are official is irrational given that most public agencies -- including Bennett's own office -- both accept and encourage electronic filings.
Bennett said that's true. But he said that occurs only after someone has filed initial documents in writing.
He even pointed to a standard note at the bottom of Oberbillig's ruling which says that while the clerk's office does not accept paper filings from attorneys in civil cases, the lawsuits themselves "must still be initiated on paper."
Bennett said that while he is challenging Oberbillig's ruling, the processing of the petitions continues. He said his office is sending a sample of 18,000 signatures to county recorders throughout the state to see what percentage of the names are valid, one of the necessary procedures in verifying the validity of initiative petitions.