High court to decide whether Prop. 145 gets back on Arizona’s ballot

The Arizona Supreme Court now holds the fate of Proposition 145, a legislatively referred measure aimed at Arizona’s school voucher program, after a Maricopa County judge removed it from the November ballot for violating the state’s Separate Amendment Rule, according to a report published Monday by the Arizona Globe.

Prop. 145’s backers have appealed, and the justices must decide whether to restore the measure. At issue is whether lawmakers bundled two distinct constitutional changes into one question. The case turns on a no‑severance provision that would wipe out entire laws if they violate a new protection for certain Empowerment Scholarship Account funds.

The consequences hit fast. If the lower‑court ruling stands, Prop. 145 stays off the ballot. If it is reversed, voters could face both Prop. 145 and the citizen‑initiated Prop. 212 in November, the Globe reported. Goldwater Institute attorney Tony Napolitano said final briefs are due August 11 and that the court should rule before the August 20 ballot‑printing deadline, according to the report.

Prop. 212, also called the Protect Education Act, is backed by nonprofit organizations and public‑sector unions, the Globe reported. The initiative would impose new limits and oversight on the state’s universal ESA program. According to the outlet, the measure would set a 150,000 dollar household‑income cap for many applicants, require certain unused funds to be returned annually, restrict eligible purchases, and add fingerprinting, background‑check, reporting and safety requirements for participating private schools and educators. Supporters call it accountability. Opponents say it would reduce access and restrict how families use ESA dollars.

Republican legislators crafted Prop. 145 as a counter to that initiative, the Globe reported. The measure would prohibit the state from “confiscating” money from qualifying ESA accounts held for children of military families. It would also add a no‑severance clause that says if a future law violates that protection, the entire law is void and a court may not preserve the remaining provisions. That second part is the constitutional flashpoint.

Napolitano, a senior attorney at the Goldwater Institute representing two intervenors defending Prop. 145 in the appeal, argues the two subsections are one coherent policy, a protection backed by a bright‑line consequence. “The idea is to let the voters choose,” he told the Globe. He also characterized the Prop. 212 campaign as driven by nonprofit and public‑sector union interests, according to the report.

The challengers include the Protect Education, Accountability Now Committee, Save Our Schools Arizona and voter Linda May Lyon, the Globe reported. Their attorneys argue that Subsection A, the military‑family account protection, would already be enforceable as part of the state Constitution. In their view, Subsection B goes further by authorizing courts to invalidate otherwise lawful portions of Prop. 212, or any future law, because one provision conflicts with the new protection. They also contend lawmakers used the popular cause of protecting military families to carry a separate and more controversial change to courts’ traditional power to preserve constitutional portions of a statute.

Maricopa County Judge Joseph Kreamer agreed that the two sections are connected on the surface, but ruled that connection is not sufficiently interrelated under Arizona’s Separate Amendment Rule, according to the Globe. The rule is intended to ensure voters can consider distinct proposed constitutional changes separately rather than being forced to accept one to obtain another. The judge found Subsection A creates a substantive protection for a specific category of scholarship accounts, while Subsection B makes a broader structural change affecting courts, lawmakers and entire future laws. He rejected a separate claim that Prop. 145’s title was legally inadequate, the outlet reported.

The appeal therefore turns on a narrow question with broad fallout: is the no‑severance provision merely an enforcement mechanism, as supporters argue, or a separate constitutional change that requires its own vote, as the challengers contend. Napolitano told the Globe the Legislature intended not only to protect military‑family scholarship money, but also to create a trigger that invalidates any entire law that crosses that line. That framing highlights the drafting gamble at the heart of the fight.

For policymakers, the lesson is not subtle. Arizona’s Separate Amendment Rule penalizes clever packaging. If the goal is to protect ESA funds for military families, that can be put to voters cleanly. If the goal is also to curtail courts’ ability to salvage parts of broader statutes, that likely needs its own ballot question. Whatever one thinks of the merits, competence in divided government means writing measures that survive rules as written. The Supreme Court is not choosing ESA policy in this case, it is deciding how many questions voters will be allowed to answer in November.

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