Arizona's fight over Proposition 212 is, for now, a fight over words, and two Maricopa County Superior Court judges ruled this week that the words as written misled voters. The measure would add guardrails to the state's Empowerment Scholarship Account program: limiting how the accounts can be spent, adding a 150,000-dollar family income cap, and shifting oversight to the State Board of Education [1]. Its backers include the Arizona Education Association and Save Our Schools [1].
The two rulings cut in opposite partisan directions, which is why it is worth keeping them straight rather than merging them into a single verdict.
In the first, Judge Daniel Martin found that the Republican-controlled Legislative Council's official voter brochure was illegally misleading [2]. The brochure told voters that the committee backing the measure would have 'the power to sue the families and private schools' that participate in the program [2]. Martin found that false: the initiative lets the committee enforce or defend the measure itself in court, not sue participating families or schools [2]. He ordered the council to rewrite the offending language by August 21, before the guide reaches Arizona's 4.3 million registered voters, while leaving other challenged portions intact [2]. The phrase 'the paradigm of provocative phrasing' surfaced in the proceedings to describe the brochure's wording.
In the second, Judge Julie Ann Mata found that Secretary of State Adrian Fontes acted unlawfully by describing the accounts as 'vouchers' [1]. "Because the phrase may cause voters to treat legally distinct programs as the same, the court concludes that the use of 'school voucher programs' is misleading," Mata wrote [1]. The word 'voucher' does not appear in Arizona's ESA statute, and the court noted that while the label reflects common usage, the accounts are a legally distinct structure [1]. That ruling cuts against the measure's supporters, who favored the plainer 'voucher' framing, just as Martin's cut against its opponents.
A third case is the one that could matter most, and it is not yet decided. A separate trial before Judge David McDowell, which ended August 11, tests whether the people who circulated the Prop 212 petitions were legally qualified to do so [2]. Backers reported submitting more than 421,000 signatures against a required threshold of 255,949 [2]. If McDowell rules the signatures invalid, Prop 212 could be struck from the ballot entirely, regardless of how its description is worded. No ruling had been issued as of this writing, and one is expected before the ballot-printing deadline around August 20-21 [2]. These are three distinct proceedings, and only two have produced decisions.
