Can the Governor unilaterally re-write election laws during a “state of emergency”? And if so, are those alleging that such laws unduly burden their constitutional rights required to first ask the Governor for relief before they can pursue their claims in court?
Those consequential questions have unexpectedly emerged in a special action filed in the Arizona Supreme Court on April 1 by several political committees sponsoring statewide initiative measures in the 2020 election cycle. According to the committees, the widespread “social distancing” practices compelled by the COVID-19 pandemic and reinforced by the Governor’s recent executive orders have made it inordinately difficult to collect physical petition signatures; hence, they argue, vindication of their state and federal constitutional rights requires that the Secretary of State’s “E-Qual” system for collecting electronic signatures on candidate nomination petitions be expanded to include statewide initiatives this cycle. (Another lawsuit advancing similar theories is pending in federal court).
Two days later, the Attorney General submitted a “memo” urging the court to stay the proceedings “while Plaintiffs first go to the Governor to request their desired relief.” In support of this contention, the Attorney General relied primarily on A.R.S. § 26-303(E)(1), which provides that during a declared “state of emergency,” the Governor is invested with “complete authority over all agencies of the state government and the right to exercise, within the area designated, all police power vested in the state by the constitution and laws of this state in order to effectuate the purposes of this chapter.” According to the Attorney General, this expansive delegation of authority confers on the Governor “primary jurisdiction” to evaluate legal claims seeking the modification of state election laws.
This novel theory precipitates quandaries both mundane and profound. Preliminarily, there is no legally cognizable process for “petitioning” the Governor or otherwise requesting official gubernatorial action. The Governor is not an administrative agency and is not subject to the Administrative Procedure Act; there are neither procedural parameters nor substantive standards governing the submission, consideration, and review of entreaties that the Governor modify or suspend election laws.
Those considerable practical puzzles aside, what does it mean for the Governor to possess “all police power,” a term nowhere defined by Arizona law? A contextual reading of this provision—buttressed by a review of the precursors to the current statute—strongly suggests that the Legislature intended only to afford the Governor the latitude necessary to develop and implement administrative measures urgently necessary to protect health and safety. The capacious alternative championed by the Attorney General, by contrast, seemingly posits that the provision consolidates all functions of state government—legislative, judicial, and executive—in the person of the Governor for the duration of any “emergency” he declares. Under this view, the Governor apparently is entitled to occupy the traditional province of the legislative and judicial branches by, for example, modifying or suspending codified election procedures. The compatibility of such a theory with the separation of powers secured by Article III of the state constitution is dubious, to say the least.
More broadly, the questions presented by the special action likely presage similar disputes—here and in other states—over the coming months. The pandemic is spawning controversies (and litigation) concerning nearly all facets of the election process, ranging from ballot access qualifications to the manner and method of casting votes to the rescheduling of election dates. At stake is not only the proper equilibrium between public safety and election integrity, but also which branch of government should make that calibration. Courts in Ohio, Illinois, Massachusetts, and Virginia are already confronting requests for modifications of those state’s petition signature thresholds and/or filing deadlines. Last week, the Wisconsin Supreme Court nullified the governor’s attempt to unilaterally postpone that state’s primary election, and a federal judge’s order extending the deadline for submitting absentee ballots was effectively vacated by a divided U.S. Supreme Court. The outcomes of these proliferating disputes will not only impact the 2020 elections, but may also reshape the election law terrain for years to come.
