Today the trial court issued rulings in two ballot access lawsuits, both concerning citizen initiatives (recreational marijuana, in which Statecraft defended the ballot measure committee, and minimum wage). Both rulings were in favor of the initiative committees and allow the initiatives to be printed on the November ballot.
The rulings are the latest data points in a broader pattern in ballot access litigation: judges tend to lean marginally in favor of ballot access, and close calls tend to go for the proponents of ballot access. (Indeed, it appears that no published judicial decision in Arizona has removed an initiative from the ballot in more than 15 years based on defects in the form or contents of the petitions.) And although both of today’s decisions concern initiatives, this trend can be seen in candidate and referendum ballot access cases as well. In light of this trend, opponents of ballot access are wise to make sure their arguments and evidence are well organized, not attenuated or inferential, and clearly presented. Arizona judges will certainly remove candidates and ballot measures from the ballot when appropriate; they just won’t do it unless deficiencies are clearly proven.
The reason for this trend is difficult to surmise. It may be that trial judges are concerned about reversal in the appellate courts, or that they are comfortable punting “close calls” to voters and political processes. But whatever the causes, the trend is difficult to deny.
Court watchers should of course remain skeptical of any overt or unspoken judicial favoritism or bias, whether in favor of the government (a favorite point of criticism amongst private attorneys who litigate against government officials and agencies) or ballot access proponents; neutral and evenhanded application of the law is always best. But litigants are wise to enter the courtroom with eyes wide open as to the realities of judicial decision making in ballot access cases.