Voucher critics tell Supreme Court GOP voucher measure is an unconstitutional ‘Trojan horse’

Public school advocates hoping to rein in the Grand Canyon State’s billion-dollar universal private school voucher program told the Arizona Supreme Court that Republican legislators hope to “weaponize the popularity” of protecting money for military families to gut a citizens initiative — and rewire the separation of powers.

Proposition 145 is ostensibly about protecting money for students in families where a parent is in the military, who make up less than 1% of all voucher recipients, and it would amend the state constitution to bar any law that confiscates any unspent voucher money awarded to those students.

But it also says that if any law doing so is approved after Nov. 1 of this year then the entirety of that law, not just the provision affecting students in military families, is voided.

And that means Proposition 212, the Protect Education Act, would be immediately struck down if voters approve it in the Nov. 3 election. That measure would place guardrails on the universal private school voucher system that is used by roughly 100,000 Arizona students. 

Its reforms include background checks and safety standards for private schools taking voucher money, a $150,000 income cap for students to access the vouchers and restrictions on spending voucher money on luxury items. But it would also take back unspent voucher funds for all students that families are saving for college tuition, which is currently allowed, and outlaw the practice going forward.

The result, attorneys Sambo Dul and Austin Yost wrote on behalf of the Protect Education Accountability Now committee, is that Prop. 145 is a Trojan horse that “attempts to smuggle multiple constitutional amendments — in furtherance of an ulterior purpose — past the voters under the guise of protecting military families.”

And this, they argued, is exactly the “pernicious logrolling” the Arizona Constitution’s Separate Amendment Rule exists to stop. That rule demands that proposed constitutional amendments be limited to a single action.

The Protect Education Accountability Now committee, which is behind Prop. 212, sued to remove Prop. 145 from the ballot for violating that constitutional rule. Last month, Maricopa County Superior Court Judge Joseph Kreamer agreed and ruled it unconstitutional because it bootstrapped the broad language barring any future voucher regulations or reforms onto a narrowly tailored measure. Lawmakers, he noted, have never before tried to openly bar voters or future legislatures from enacting laws in the way they hoped to with Prop. 145.

Republican legislative leaders argued to the Supreme Court last week that, even if Prop. 145 did preemptively nullify Prop. 212 in the name of protecting military families — something they didn’t concede — it wouldn’t matter. And if they’d wanted to, legislators could have fully barred any future legislature or ballot measure from imposing any regulations whatsoever on Empowerment Scholarship Accounts, the formal name for the voucher program.

But that’s just not true, Dul and Yost argued. The first section of Prop. 145 fully protects military scholarships by making any confiscation of unspent money unconstitutional, while the second section reaches to any number of other provisions that don’t affect military families at all — but is only triggered if the law in question violates the first section.

“Subsection B’s exclusive purpose is to invalidate — by mere association — provisions having nothing to do with confiscating military families’ scholarship funds,” they wrote in their answering brief.

The two provisions cannot “stand or fall as a whole” because the first section stands fine on its own and the second section exists only to reach beyond the scope of the first section, meaning it violates the rule that constitutional amendments be limited to a single action.

And beyond that, the anti-voucher committee told the justices, the GOP legislators and their allies have already acknowledged in legal filings that the goal of Prop. 145 is to “override a ‘competing statutory initiative,’” and one of the pro-voucher attorneys “admitted during oral argument that (Prop. 145) would invalidate Prop. 212.”

On top of that, if the Supreme Court upholds the unprecedented inclusion of a provision that bans all potential legislation on a topic, Dul and Yost said it will be giving a green light to “a playbook for future legislatures (or groups of citizens) wishing to surreptitiously invalidate laws or initiatives.”

For instance, they posited a hypothetical constitutional amendment titled the “Protect Children from Sexual Predators Act” which bans state funding of any program lacking background checks for adults with unsupervised contact with children that is paired with a similar total-invalidation clause. Because private schools aren’t required to conduct those background checks, the result would be wiping out the entire ESA voucher program under the guise of protecting children from sexual predators.

“Future legislatures, and citizens’ groups proposing a ballot measure, would be foolish not to borrow this deceptive formula — and the mischief could extend far beyond ESAs,” Dul and Yost wrote.

They also rebutted the claim by attorneys representing two military families that use vouchers that Prop. 145 merely consists of a rule and a consequence, thus making it a single amendment. If a proposed amendment established a right to abortion in the first section, then declared in the next that any new law violating it would mean the next governor is appointed by the president of the Arizona Senate instead of an election, the “consequence” is clearly dependent on the first section.

“Calling something a ‘consequence’ doesn’t answer whether it shares a common purpose,” Dul and Yost wrote.

And the Protect Education Accountability Now committee said the Supreme Court should see the GOP legislative argument that Prop. 145 is constitutional because it could be compressed into a single sentence, thus proving it isn’t two separate amendments, for what it is: a “Hail Mary” of a legal argument.

“Recognizing the shortfalls of (Prop. 145) as drafted, Legislative Appellants invented a new theory during oral argument that now serves as the thrust of their entire appeal,” its attorneys wrote. “It is telling that the Legislature cannot defend HCR 2048 as written, instead asking this Court to analyze it as if it were written differently.”

And even if it were written as a single sentence, Dul and Yost argued, it would still be unconstitutional because it serves two different purposes.

“(I)t would still create a new substantive right as a front to force wholesale invalidation of legislation having no bearing on that right,” they concluded.

Republican lawmakers and the military family parents have until the end of Tuesday to file their reply briefs with the court.