Highlights

Republican attorneys defending Proposition 145 told the Arizona Supreme Court this week that the measure would be constitutional even if it nullified every future attempt to regulate the state's school voucher program, a concession-that-isn't that sharpens the legal fight heading into a hard Aug. 20 deadline.

Attorneys for Senate President Warren Petersen and House Speaker Steve Montenegro filed the appeal after Maricopa County Superior Court Judge Joseph Kreamer removed Prop. 145 from the ballot last month. Kreamer concluded the measure goes well beyond its stated purpose of protecting unspent voucher savings held by military families and would also bar any future reforms to the Empowerment Scholarship Account program. That dual effect, he ruled, violates the Arizona Constitution's Separate Amendment Rule, which limits proposed constitutional amendments to a single action.

The Republican legal team disputed that Prop. 145 actually preempts the field of ESA regulation, but argued the point is irrelevant. Attorney Thomas Basile wrote: "But assuming arguendo that this is true, so what? Even if (Prop. 145) preempted the entire field of ESA regulation — for example, if it stated something like: 'no law may limit, abrogate, or abolish the Empowerment Scholarship Account program in any manner whatsoever' — it would pose no constitutional conundrum."

The Republican brief also accused Kreamer of two analytical errors: treating stylistic paragraph breaks as determinants of constitutional validity, and misapplying the doctrine of severability as an independent judicial power rather than a tool of restraint.

Democratic caucus attorneys Rhonda Barnes and Elizabeth Higgins countered that the severability clause Republicans drafted for Prop. 145 is genuinely without precedent. Standard severability clauses protect the legislation they appear in, allowing courts to preserve valid portions when one section fails. The Prop. 145 version inverts that logic, voiding the entirety of any future law that conflicts with it. Democrats noted that GOP lawmakers placed conventional severability clauses in Proposition 144 and Proposition 318 during the same session, demonstrating they know how to write one.

The Democratic brief also pointed to floor statements Republicans made during the final hours of the legislative session. Rep. Michael Way, a Queen Creek Republican who sponsored the legislation, said the measure targets what he called egregious measures, including the ballot initiative campaign then underway. Senate Majority Leader John Kavanagh, a Fountain Hills Republican, said Democrats had brought the measure on themselves by rejecting an earlier compromise that would have paired moderate voucher reforms with the withdrawal of the initiative campaign.

The rival measure, Proposition 212, known as the Protect Education Act, seeks to place a series of regulations on the voucher program. Its backers, the Protect Education Accountability Now Committee, have until end of day Monday to file their response brief. The Arizona Mirror, KJZZ, and the Tucson Star have all tracked the litigation.

The Goldwater Institute, which drafted the constitutional amendment, argued on behalf of two military veterans whose families hold affected accounts that Kreamer applied the wrong legal test, asking whether the two sections of the amendment were mutually necessary rather than whether they were sufficiently interrelated. The pro-voucher Arizona Free Enterprise Club urged the court to resolve any close constitutional call in favor of keeping the measure on the ballot, arguing that removal cannot be undone. School choice group EdChoice asked the court to go further and reconsider Arizona's entire Separate Amendment Rule framework, shifting the analysis from counting amendments to evaluating whether they cover multiple subjects.

The Supreme Court must resolve all general-election ballot litigation by Aug. 20.

Sources

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  1. azmirror.com retrieved 07/08/2026 23:15

Authored by The Scottsdale Signal. Drafted by AI from primary-source material under our beat-specific editorial guides; reviewed by humans before publish under our five-gate process. Sources retrieved at 07/08/2026 23:15. Every claim traces to a source.