Votes Can’t Just be Thrown Away

“Votes Can’t Just be Thrown Away.”  That is a good quote.   Let us place the quote in its proper context.  When Arizona’s Voter Protection Act/Proposition 105 was advocated in 1998, Sheriff Joe Arpaio was a voice in favor of the VPA.  The full quote is as follows:

The will of the people is the most important element of our government. Once an election takes place, votes can’t be thrown away just because a few politicians don’t like the results of an election.  I believe Arizona voters are smart enough to know what they are voting for. I don’t think the Legislature or the Governor should have the right to thwart or veto the will of the people. I urge you to vote Yes on the Voter Protection Act. It will preserve the will of the people in Arizona once and for all.

Joe Arpaio, Sheriff

Sheriff Joe is not known to be left-leaning.  After passage, there have been multiple attempts to weaken Arizona’s Voter Protection Act/Proposition 105, generally by the right side of the aisle.  Most recently in 2022 via Proposition 128.  That proposition failed.  The proposition was referred to the ballot by Republican state lawmakers.  Had it passed it would have allowed lawmakers to alter ballot measures if any language is illegal or unconstitutional.  We are not picking on left or right, we are recognizing that politicians like power.   The more power they remove from voters, the more they have for themselves.   Not a left or right phenomenon.   Citizens know “lawmakers” are not judges.   Citizens know they hold the power.   Someday Payson Town Council may realize the same.

Once again, We apologize in advance for the long read.  Complex matters do not lend themselves to snippets, sound bites, and PowerPoint presentations.   Fundraising is going well.  Help us help you by defending your voter’s rights, and your voice.  Please donate.  If we fail, it will get worse.

We will cover various topics in the next few days:

• The justification presented to the Town in support of repeal.
• Why an Emergency Ordinance was used.
• An update on the matter of Varxity vs. Town of Payson.

Thank you again for all the support. Each of you is vital to our continued success.

Today we discuss Payson’s position to support the repeal and a discussion on the VPA/Proposition 105

We noted that we had not provided information regarding the Town Ordinances and the presentation via Mr. Paladini, Town legal, for the purported repeal of the Ordinances.   The firm of Titus Brueckner prepared the Answer, provided no case citations, and made no reference to the VPA/Proposition 105.   The Counter Claim, prepared by Mr. Paladini, and Pierce Coleman, cites two cases.  Both the Answer and Counterclaim may be found here.   Most arguments made during the Council presentation were not included in the Answer or Counterclaim.  The TOP, via ordinance, has concluded that Propositions 401 and 402 are unconstitutional.  TOP Oridnace 954 references four prior cases.  Three of them were presented by Mr. Paladini in his presentation to the Council.  The Counterclaim cites two of the four – two of three made during the Council presentation. A full review of the presentation by Mr. Paladini may be found here.

Below are copies of the PowerPoint presentation as well as a memo to counsel provided via Pierce Coleman and Town Ordinances 953 and 954 in their entirety.   These documents discuss the implications of the VPA/Proposition 105, and Town Legal has concluded that the Voter Protection Act does not apply to Propositions 401 and 402.   The memo states in part as follows:

The plain language of the VPA as well as multiple interpretations of the amendment, allows the Town Council to conclude that Propositions 401 and 402 are not protected by the VPA.

Town Council with their vote concluded just that. We note that Mr. Paladini analyzed the VPA/Proposition 105 and found that it restricts the State Legislature.  That is a true statement; the VPA/Proposition 105 was designed to do that.  Like the VPA, Propositions 401 and 402 were designed to restrict the Town Council.   These restrictions require the Town to seek voter input before entering into long-term debt/the lease of public land.

Does the VPA apply to Town issues?  You can decide.   The VPA/Proposition 105 reads in relevant part as follows:

(8) Local, city, town or county matters. The powers of the Initiative and the Referendum are hereby further reserved to the qualified electors of every incorporated city, town, and county as to all local, city, town, or county matters on which such incorporated cities, towns, and counties are or shall be empowered by general laws to legislate.

You will note that the text of the VPA/Proposition 105 specifically addresses local city, town, or county matters.   In the memo to the Town Council, Mr. Paladini discussed the analysis by legislative counsel regarding the VPA/Proposition 105.  It appears he may have omitted some of the legislative analysis.

ANALYSIS BY LEGISLATIVE COUNCIL, (In Compliance With A.R.S. Section 19-124)

* * *
Proposition 105 would make all of the following changes apply to any ballot measure that is approved by a majority of the people who voted on that ballot measure:
* * *
This proposition would apply to any ballot measure that is approved by the voters on or after the November, 1998 election.

* Emphasis added.

That seems clear to us.   Any ballot measure would include local Propositions 401 and 402.

We hope Mr. Paladini would acquiesce to Attorney General Mayes on all things in the Arizona Constitution.  The Honorable Ms. Mayes has recently addressed the question of the Voter Protection Act at the local level.  The matter flows from a local Phoenix issue outlining the minimum wage and the need to honor the prevailing wage on town projects.   The Ordinance, which ultimately passed, amended the City Code to require that every employee employed by a contractor or subcontractor working on a City public works contract in excess of $250,000 be paid “not less than the wages and fringe benefits prevailing for the same class and kind of work in the local area.”

The Attorney General reviewed the consistency with the Voter Protection Act.

Consistency with Voter Protection Act

Furthermore, as a voter-approved initiative, the Minimum Wage statute is shielded by the Voter Protection Act (“VPA”), which prohibits the legislature from amending or repealing voter-approved legislation “unless the amending legislation furthers the purposes of such measure” and is approved by “at least three-fourths of the members of each house of the legislature.” Ariz. Const. art. IV, Pt. 1 § 1(6)(C).  The Prevailing Wage statute, although enacted as a referendum, predates the VPA and is therefore not subject to its protections.

The text of the 2011 and 2015 amendments to the Prevailing Wage statute do not override the authority counties, cities, and towns received under the Minimum Wage statute in 2006.  But to the extent that the Legislature may have intended the amended definition of “political subdivisions” to specifically apply the prevailing wage prohibition to counties, cities, and towns, such an amendment would be ineffective under the VPA.

In Meyer v. State, the court of appeals considered a statute that “removed from cities, towns, and other political subdivisions the authority to regulate employee benefits, including nonwage compensation.” 246 Ariz. 188,193 ¶ 12 (App. 2019) (internal quotation omitted). The court determined that the measure “explicitly prohibits what the Minimum Wage Act permits,” i.e., the ability to regulate benefits, and therefore it violated the VPA’s express prohibition on legislative changes to voter-approved laws. Id. at 195 ¶ 24. Similarly, here, any measure that purports to limit the authority of counties, cities, and towns to regulate minimum wages within their boundaries would not be permitted under the VPA.

We believe that Propositions 401 and 402 are valid to the extent that the Propositions do not violate any County or State law that would expressly prohibit them.  They do not limit the authority of the Town.  They provided the Town with additional authority.  The citizens, acting as a legislative arm, have full authority to enact the legislation.  The citizens granted authority to the TOP as found in the Propositions to discharge the requirements.

We can wrap up with a few more quotes on the issue of Voters’ rights and the Voter Protection Act of 1998.

The message is clear from the politicians: “we know better than you.”. . . We have seen a lot of scandals in Arizona politics over the last few years, but the legislature thwarting the will of the people seems to me the ultimate act of arrogance. Let put an end to this by voting Yes on Proposition 105.

Richard Mahoney, Former Secretary of State

“(T)he ultimate act of arrogance.  That too is a good quote.  Need another? We can do that.

The ultimate test of a democracy is whether a citizen’s vote actually counts.  There is a disturbing trend in Arizona in which citizens pass initiatives by overwhelming margins, only to watch the legislature turn around within months and gut what the voters passed.  This has occurred on numerous issues, including drug policy reform, health care, and the environment. . . . Let the will of the people stand.

Grant Woods, Arizona Attorney General

Politicians do NOT know better than you.  Do not let them throw away your vote and gut what voters passed.  It is an act of arrogance.

Council agenda item memo, April 12th, 2023.

Town of Payson PowerPoint presentation to support purported repeal.

Town of Payson Ordinance 953. Repeal the right to control public land. April 12th, 2023.

Town of Payson Ordinance 953. Repeal the right to know/debt obligation. April 12th, 2023.

The initial hearing is scheduled for September 22nd at 1:30 p.m. in Payson.