The Daily Agenda: Constitutional is in the eye of the beholder
The Daily Agenda: Constitutional is in the eye of the beholder
1958 never ends ... Border vigilantes and border plays ... And our favorite headlines from across Arizona.
A Yavapai County judge yesterday struck down the provision of House Bill 2489 that took precinct committeemen off the ballot for the 2022 election.
But we’re not gonna bore you with another story about the PC issue, which affects a few dozen people running for the obscure party office, despite the doomsday fever Republican PCs whipped up over it and AZGOP’s claim that its lawsuit “saved elections for nearly 3 million voters.” (But let’s pause on that for a moment to remember AZGOP’s other lawsuit, the one trying to outlaw the way 3 million voters cast ballots in 2020.)
Today, we want to talk about constitutionality.
Yavapai County Superior Court Judge John Napper declared the PC provision unconstitutional because it violates the special legislation clause of the state Constitution, as the Arizona Mirror’s Jeremy Duda points out.
Lawmakers presumably would have known the law was unconstitutional, had the bill gone through the regular legislative vetting process, complete with hearings from the House and Senate rules committees.
But even when lawmakers have fair warning that a bill is likely unconstitutional, it rarely stops them from doing what they want. The self-proclaimed “constitutional conservatives” at the Capitol routinely ignore the advice of their attorneys, whose sole job it is to vet bills for constitutionality.
On Monday, lawyers on the Senate Rules Committee advised against approving House Bill 2319, one of the most controversial bills in the Legislature right now. It would ban people from filming within 8 feet of police without an officer’s permission. (That kind of bystander video footage has been critical for police accountability.) But because the Senate Rules Committee doesn’t record or televise its meetings anymore, we wouldn’t even know what the lawyers said if not for reporters sitting in on the hearing in person.
But that bill is just one of the dozens this year that the lawyers have flagged as possibly or likely unconstitutional. (They never say a bill IS unconstitutional, even in blatantly obvious cases, because technically nothing is unconstitutional until a court says so.)
It isn’t a new problem. Here’s an excerpt from something we wrote about it1 back in 2017:
When the House Rules Committee held its first meeting of the year to discuss a states’ rights bill by Republican Rep. Bob Thorpe, rules attorney Tim Fleming told lawmakers the exact same thing he told them about the exact same bill last year: It’s likely unconstitutional.
And just like last year, the committee, whose sole responsibility is to ensure bills are constitutional and properly drafted, ignored the attorney’s advice and approved the bill.
While it would be naive to believe that the PC debacle will lead lawmakers to actually adhere their counsel’s advice, perhaps, at least, it will remind them to hear their lawyers out.
Well played, Legislative District 16 team!: Republican Sen. Kelly Townsend and her equally conspiratorial seatmate, Rep. John Fillmore, got a lot of ink after Townsend heard Fillmore’s bill to institute “1958-style” voting (but without machines) in her Senate Government Committee as a strike-everything amendment. And getting ink was the point of the hearing, considering the bill had been assigned to all 12 House committees and has no chance of becoming law.
Can’t have a second failed vote to arrest supervisors without a second subpoena: More importantly, Townsend fired off a subpoena, as promised, to Maricopa County demanding the signature on file for every voter. She and the Attorney General’s Office want the signatures to chase down accusations from election dead-ender and self-proclaimed inventor of email, “Dr. Shiva” Ayyadurai. As expected, Maricopa County Supervisor Chairman Bill Gates is not pleased, and Townsend is subsequently not pleased about the manner in which Gates was not pleased. On that note, now’s a good time to re-read Robert Robb’s column from last March about how individual lawmakers shouldn’t have subpoena power.
Do we really need a poll for this?: OH Predictive Insights found that 75% of voters support Arizona’s vote by mail system that AZGOP is suing to eliminate — almost 90% of voters used it in 2020. However, two-thirds supported adding additional verification measures — like driver’s license number or the last four digits of their social security number — on mail-in ballots, KJZZ reports.
Unsettling but potentially effective: The New York Times Magazine’s Jason Zengerle dives into Republican U.S. Senate candidate Blake Masters’ dystopian campaign videos, arguing they break all the aesthetic rules of campaign ads and take a page from Tucker Carlson.
“Carlson delivers his monologues from the familiar setting of a cable-news studio. Masters isn’t a Fox host. But his stark positions have yet to be reduced to the simple shorthand images political ads normally rely on. He can’t declare that schools are making kids dumber over footage of himself talking to kindergartners. His living room would be an incongruously cozy place from which to convey the message that the country is run by psychopaths. So we get Masters, by himself, prophesizing doom from a desert or a hayfield, his ads radiating a weird, wordy energy.”
You can run for office and work for Ducey at the same time: Now that Maricopa County Attorney Allister Adel has resigned, the office will get an interim replacement while the race begins for someone to replace her via election. Activists say Adel’s resignation is just the first step in accounting for systemic problems at the county attorney’s office, and they want to see more work to reverse the county’s longtime tough-on-crime stature. In the mad-dash for signatures, Julie Gunnigle, who ran as a Democrat for MCAO in 2020, scooped up enough to qualify for the ballot within a day. And Anni Foster, Ducey’s general counsel, threw her name in as a Republican, too — she’ll undoubtedly have the support of the well-funded Ducey machine.
Nothing new under the sun: The latest round of education bills at the Arizona Legislature aimed at culture-war topics like transgender athletes, critical race theory and parental oversight mirror decades-old battles, like those over sex education and the Mexican American studies debate, that still reverberate in the lives of Arizona students and teachers, the Republic’s Yana Kunichoff writes.
When lawmakers won’t help, help yourselves: The state hasn’t stepped in to regulate groundwater in parts of the state where aquifers are shrinking, so a group of residents in Cochise County’s Sulphur Springs Valley gathered signatures to put a measure on the local ballot to make the Willcox and Douglas basins into areas where groundwater is actively managed, op-ed writer Paul Hirt writes. If successful, it would be the first time an area voted to become an active management area and could spur efforts in other communities where groundwater depletion is a problem.
Vigilantes on Patrol: A group called Veterans on Patrol, which is not led by a veteran, but is led by Michael Lewis Arthur Meyer, who has an outstanding warrant for failing to appear in a Tucson court, has been “intercepting unaccompanied minors at the border wall in Arizona,” the Border Chronicle’s Melissa del Bosque writes. Meyer has a history of spouting conspiracy theories and using vigilante tactics in the Arizona borderlands. The group collects contact information from the minors, then goes to sponsors’ homes, it claims, in an attempt to hunt for pedophiles.
In other border news: Performers staged a play about the border on both sides of the border, in Douglas, Arizona, and Agua Prieta, Sonora, earlier this month, with audiences watching from both sides of the steel fence. And in Nogales, Sonora, this week, protesters called for the U.S. to end Title 42, which directs U.S. immigration officials to expel people entering the U.S. without documentation, turning away those seeking asylum at the border.
Cold no more: A new unit in the Phoenix Police Department tasked with adult sex crime cold cases began in December and says it has made 11 cold-case arrests since then, including a man arrested last week for two assaults of teenagers in 2016 and 2017, 12News reports.
What’s normal anymore?: The pandemic altered the landscape and functions of cities around the Valley, sending white-collar workers from their offices to their homes and putting city meetings on video platforms. Two years later, many workers are back in person, but some cities remain in states of emergency and some government meetings remain online, the Republic’s Joshua Bowling reports.
Not a good combo: The number of Alzheimer’s cases in Arizona is growing faster than any other state at a time when we face a shortage of geriatricians, KJZZ’s Kathy Ritchie reports.
We love a good ban-ban at the Agenda, only because it’s fun to say and not because the ideas themselves are always ones we endorse. We mentioned the most infamous one in our latest deep-dive: the plastic bag ban-ban.
A ban-ban is when it becomes illegal to make something else illegal. And House Bill 2131, sponsored by Republican Rep. John Kavanagh, would make it so homeowners associations can’t ban their members from having artificial turf. If an HOA allows natural grass, they have to allow turf, if the bill gets signed into law. There are certain conditions and exceptions that apply, like that HOAs can still create “reasonable” rules about turf installation and appearance.
The bill came up because some homeowners who want to use turf because it saves water ran into trouble with their HOAs, Capitol scribe Howie Fischer writes.
HB2131 passed the House with only two votes against it and is awaiting a full and final vote in the Senate.
The proposal, unfortunately, does not ban HOAs entirely.
Can you tell from our writing that one of us, who happens to live in an HOA, despises HOAs? The other of us has never lived in an HOA and inexplicably is fine with them. Guess who’s who!
Nothing makes us smile like a small-town newspaper. They’re regrettably, increasingly rare these days as the journalism industry continues its collapse, but Arizona still has a lot of great ones. We’ve worked for a few and we read them regularly to put together this newsletter, so we see some truly great, LOL-worthy headlines. Here are a few from this month:
One time, we tried to tally the cost to the state in defending all the bills that lawmakers were warned were likely unconstitutional and were eventually struck down in court. It was a daunting task and eventually we gave up because there were just too many.
Thanks for the shout out to the Rues Attorneys. As Senate Rules attorney for 12 years, my skin became very thick. I got paid whether they took my advice or not, so what did I care. And I get to say a quiet "fuck yeah" when something gets struck down that I advised against (can you say BRBs?)
Townsend seems to be stepping up her crazy since she might be running against way crazy Rogers in a Republican primary. Really, let’s RE-fraudit the fraudit?