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What the Devil won't tell you

Fatal miscalculation: Invest in Ed math error doomed initiative in courts

#RedforEd needed a red team to vet proposition's petition language

There’s something fittingly ironic about a school-funding initiative getting knocked off the ballot over a math error.

The initiative was supposed to help make us smarter and apparently it’s necessary.

The Arizona Supreme Court tossed Prop. 207 — the Invest In Ed initiative — off the ballot because backers missed a couple of things. They didn’t account for “bracket creep,” which I’ll get to in a second, and the tax increase proposed on top earners was inaccurately described in terms of percentages and not percentage points.

I’m not going to go background check every single member the #RedforEd team who crafted the initiative to see if they got their book learnin' from right here in Arizona schools funded near the bottom of the standings.

The Arizona Supreme Court didn’t screw up. Invest In Ed did. A challenge to the proposition was inevitable, so it needed to face rigorous scrutiny ahead of time, before it was filed.

I'm not sure that measure not being on the ballot will have any affect on the election, or rather, it better not. Progressives may have been hoping initiatives investing in schools and banning dark money would drive up Democratic turnout in during the 2018 general election.

But if Democrats and progressives need a couple of state initiatives to drive their ranks to the polls, they deserve whatever they get. See: Trump, Donald. The president is very clear he wants to turn the oldest constitutional republic into his own 300 million-person cult of personality and anyone standing in his way is an enemy of the American people. I’m not sure what else is necessary to make moderates, centrists, progressives and true conservatives crawl over nails to vote for anything resembling a donkey. If there’s no Democrat on the ballot, write in Eeyore.

This also means Democrats can’t go wild-ass nuts on Medicaring us for all and free college (not that it could pass a filibuster or be signed into law). This election is about the survival of the republic. Period. I digress ...  (Writer’s note: I’m especially ginned up on this a day after POTUS Trump amended his enemies list to also call them “violent.” Well, then, shouldn’t violence be pre-empted with vigilantism, if not prison time? This is how it starts, people.)

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What’s standing between this and that is, in fact, the rule of law.

The Invest In Ed organizers missed that part.

Let’s start with bracket creep. Let’s say I set a tax rate of 10 percent at an annual income of $50,000 and a rate of 20 percent on income over $100,000. Say you and your spouse each make $45,000 year and get 2.5 percent raise for inflation every year. In a few years, you’ll break into the $100,000 tax bracket even though you are still making that same $90,000 a year when inflation is considered.

There’s a fantastically simple three-word fix to this: Index to inflation. That way, the 20-percent tax bracket kicks in at $102,500 of annual income. You get your raises and make $92,225. Problem solved. The other way around it is to simply increase the top tax brackets in the state and not mention the income, since the brackets themselves already do that.

The lawyers supporting the regulation made the argument that they created two new tax brackets indexed to inflation by adding a new section of language. Yet one could argue, as the attorneys representing opposition groups did, the new language killed existing language “indexing” taxes. The language also amended reset the tax law to 2015, when the indexing law took effect.

And so the lawyers went back and forth and the court, mostly composed of Republican appointees, ruled.

Ordinarily, I don’t try to play lawyer because I’m not one. In this case, the language should have been obvious, inscrutable and unassailable. Just caret in two new tax brackets into the existing law that indexes them for inflation. Did the crafters of the initiative think the opposition would fail to come after them in court?

The term is “red-teaming.” The folks who wrote the law and the petition description needed to hand it over to another team playing a bunch of fire-breathing supply-side lawyers ready to attack that language at every weak point.

The language on the petition explained that taxes would increase to 8 percent on individuals with annual incomes above $250,000 and households earning $500,000 per year. Rates would increase to 9 percentage points on households that make more than $1 million.

These groups are now all taxed at 4.54 percent. So note the word “points.” The language on petitions used the word "percent." The two are not interchangeable. An increase from 60 to 70 is not a 10 percent increase (as every editor in every newsroom around the world knows to remind reporters); it’s a 16.7 percent increase.

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The ballot language referred to the tax hike as a 3.46 “percent” increase.

Did none of them take math class?

Dark, direct democracy

I don’t know how many times I’ve implored Arizona to circumvent the Legislature so schools could get the injection of funds they so desperately need. Just be smarter about it next time.

Governing by initiative is the most and least democratic way to get things done. Direct democracy reflects the will of the people on any single ballot question. Yet how that question is put together tends to be done away from public debate. That’s a problem for democracy and the law itself.

Every ordinance or bill passed in the state is supposed to have a public hearing. Policy-wise, it pays to subject would-be laws to sunlight and debate.

Having covered municipal and county governments for more than a decade, I can tell you that proposed ordinances regularly get tweaked at the last moment because someone in the public sees a big potential problem. A speaker will address elected leaders up on a dais and say “you forgot about this honking problem over here.” The council or board will turn to staff and say “is changing that a problem?” and staffers will reply “not really, no.” Or both sides will work together to fix language and blunt unintended consequences.

Ballot initiatives just need signatures and they go straight to voters. Doesn’t matter if it was written in a basement covered in tinfoil.

Power, gang, lies in controlling the question that is asked, more than affecting the answers that are given. It also means no one is more potentially lethal to a ballot measure than the one who wrote it. Fix it ahead of time by letting someone else break it early.

The Legislature and Gov. Doug Ducey have the state more or less how they like it. The last thing they want is for the unwashed masses to put their people power all over Arizona law, and taint these Gospels According to Rush. So the powers that be and their cohorts over at the Arizona Chamber of Commerce and Industry will fight any change away from talk-radio righteousness.

That just means voices who want to moderate from the Far Right orthodoxy must be 100-percent squared away. Rules must be followed.

The courts crushed another ballot initiative Wednesday, thwarting the people who nobly crusaded against massive injections of campaign cash by anonymous donors not wishing to let the world know who is buying whom. Opponents don't want people to know just whom is quidding their pro quo.

Here came the Outlaw Dirty Money initiative to fix it.

State law requires that anyone who gathered signatures must appear in court if the signatures they collected get challenged. The clean money people couldn’t produce enough of their gatherers when summoned and so all the signatures that were collected by those absent were tossed. The initiative, therefore, didn’t meet the threshold

The law is terrible. It’s an affront to the populist spirit behind ballot initiatives. Yet it is the law. So, campaigns are going to have to stay in touch with their signature collectors and may have to fly them back to if need be.

What can I say, elections have consequences?

Arizona's high court is not a wing-nut court, or it hasn't been. It's upheld the voter-approved minimum wage law and sided with Pima County in a tax dispute with the governor and Legislature. The court is old-fashioned strict constructionalist, in that they uphold the law even if it hurts Republicans. It's not like the U.S. model, which invents rights for conservative constituencies, while denying and disparaging liberal rights — no matter the precedent.

So it couldn't have come as a galloping shock that the court wasn't going to bend to the civic spirit of better schools and cleaner elections when the initiatives didn't meet legal standards.

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Arizonans are just going to have to get better at the process until more reasonable voices can take over the Legislature.

If any of what I’ve written here pisses you off, well, I’m not your problem. The Legislature is and every single member of that body is interviewing to be hired again over the next couple months. Go say “no.” Supreme Court Justices Clint Bolick and John Pelander are both on the ballot, subject to retainment elections. You can send them packing, if you wish to shift blame. If that’s not enough, there’s a president who sees laws as simply a list of inconveniences he pays people to fix and evade, as he plays white grievance card after white grievance card, emboldened by a House and Senate that won't say "boo," much less stand in his way.

There were 2,873 reasons to vote yesterday and there are 2,871 reasons today. If progressive liberals need 2,875, then I guess progressive liberals deserve what they get.

Blake Morlock is an award-winning columnist, who worked in daily journalism for nearly 20 years and is the former communications director for the Pima County Democratic Party.
Correction: An earlier version of this column misspelled the last name of Justice Pelander.

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Teachers across the state walked out in April, pushing for more state funding for education.


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