Voucher bills don’t violate voters’ will

The political air is charged with accusations that, by considering voucher bills, Republican lawmakers are contravening the will of voters.

It is understandable that opponents of these bills would include that as a talking point. But the charge can’t withstand the mildest of scrutiny.

The issue is a matter of both law and principle.

Currently K-12 vouchers, called Empowerment Scholarship Accounts, are limited to students who fall into particular categories, such as being disabled or attending low-performing schools.

The Legislature passed a law, which Gov. Doug Ducey signed, making all kids eligible, but subject to a cap of 30,000 – roughly 3 percent of all students.

Voucher opponents successfully circulated petitions to stay the law and refer it to the 2018 ballot as Proposition 305. Voters disapproved the measure by a substantial margin.

Arizona has a constitutional provision, called the Voter Protection Act, which says that what the voters do the Legislature cannot undo.

In the case of a voter-approved law, what this means is at least partially apprehensible. The Legislature cannot mess with the language that voters approved except to further their intent, and can only do that by a three-fourths vote.

What it means, if anything, when voters turn down a ballot measure is incomprehensible.

Some think that the voter protection provision still applies. But what does that mean? That the laws that were proposed to be amended are frozen in place, beyond the Legislature?

That would produce silly results. In this case, if the Legislature wanted to tighten voucher eligibility or put additional restrictions on the use of the money, that would require a threefourths vote.

While this would be a new legal question, the odds are strong that a court would find that a rejection of a ballot measure doesn’t tie the hands of the Legislature.

But should legislators refrain from additional voucher legislation in deference to the will of the voters as expressed in the rejection of Prop. 305?

If lawmakers were proposing universal eligibility again, a case could be made that they should. Although even that isn’t crystal clear.

Voucher supporters were divided on Prop. 305. Some opposed it because it would render the cap voter protected. So, at least some sliver of the no vote came from people who thought it was too restrictive.

GOP lawmakers, however, aren’t proposing anything close to universal eligibility. Instead, they are proposing administrative changes and minor expansions of students eligible because they fit into a particular category.

Today, students who attend a D or F rated school are eligible for a voucher. One of the bills (Senate Bill 1395) would expand that to those who reside in the attendance boundary of such a school.

That just makes sense. If the decision has been made that vouchers should be available if the neighborhood school is low-performing, why make a child attend the low-performing school before offering a ticket out?

Another bill (SB 1320) would transfer administration of the ESA program from the Department of Education to the state Treasurer.

This is a bad idea. The primary duty of the Department of Education is to collect and validate the data used to calculate what school districts and charter schools are to receive from the state education finance formulas. The primary duties of the Treasurer’s Office are to make investments and cut checks.

The Department of Ed has the superior expertise to determine ESA eligibility and police the use of the money.

The current superintendent, Kathy Hoffman, may be a voucher opponent, but so far she’s given no indication that she will use the power of her office to squash the existing program.

While the transfer of administrative responsibility may be a bad idea, it wasn’t part of Prop. 305. So, hard to say that voters rejected the idea with that vote.

The Prop. 305 debate was about universal voucher eligibility. It’s fair to say that voters soundly rejected that idea.

But not minor changes to current eligibility categories or administrative changes, big or small.