Changing the Constitution | Beyond the Ballot AZ

Description

In this episode, we’re talking about conflicts in the Arizona constitution and the power Arizonans have to change the constitution.

In this conversation with Erin Scharff, the Associate Dean of Research and Faculty Development, Research Scholar and Professor of Law at ASU, we’re talking about how conflicting language ends up in the constitution and how it’s handled. Learn about Arizona’s especially amenable constitution and the ways amendments are made.

The steps for preparing an initiative

Arizona Memory Project newspapers

Hosted on Ausha. See ausha.co/privacy-policy for more information.

Transcription

Speaker #0
We understand that women can hold office. We've just elected a female governor. But to honor that moment, we want our Constitution to explicitly be inclusive.
Speaker #1
How does our Constitution stay relevant in a rapidly changing world? Today, the nuances of language and amendments that affect Arizonans.
Speaker #2
You're listening to Beyond the Ballot AZ. I'm Gina Roberts, Voter Education Director at the Arizona Clean Elections Commission.
Speaker #1
And I'm Tom Collins, Executive Director.
Speaker #2
So we sort of fell down this rabbit hole when we were pitching an episode on Rose Moffitt, who was the first woman to hold the position of Secretary of State and later on Governor of Arizona. Our research dug up a 1988 state amendment that removed language that said only men were eligible for state office. But that amendment actually came a few months after Moffat had already succeeded to the governorship.
Speaker #1
And I think it's important to say here that this was really more of a social and political change. I mean, strictly, legally speaking, there was language from a 1912 amendment that had already given women the right to hold public office in Arizona. So the drive to make this change was one driven by social and political motives.
Speaker #2
Exactly. Arizonans stood up and they said, this is not something that I want written in my constitution. But that leads us to an intriguing question. How does our legal framework deal with conflicting language?
Speaker #1
We are here with Professor Aaron Scharf, who is the Willard H. Pedrick Distinguished Research Scholar at the Sandra Day O'Connor College of Law at Arizona State University. Professor Scharf, thanks for joining Beyond the Ballot AZ.
Speaker #0
Thanks for having me.
Speaker #1
So this episode is about a change to. I think what we might call archaic law in the Arizona Constitution. And one of the things that comes up in this story is the fact that you had some conflicting language in the Constitution about who was eligible to serve as governor and these other executive offices. So how does that kind of thing work out in law typically?
Speaker #0
So conflicts within bodies of law happen all the time. There are conflicts between constitutional law and legislative-made law, statutory law. And there are also conflicts within constitutional law and legislative-made statutory law. And generally speaking, the higher the level of authority wins. So if a statute conflicts with the Constitution, the Constitution wins. And then within... law that is operating at the same level. So a statute that conflicts with another enacted statute by the legislature, or a constitutional amendment that conflicts with other language of the Constitution enacted by the people, at least within the context of the state of Arizona, the latter in time enacted provision prevails. There's also a desire to try to read these things harmoniously. But sometimes they can't be. And I think we're talking today about a time when they just can't be read harmoniously.
Speaker #1
Right, right. I mean, apparently there was some effort to do that. And that sort of gets into the next question. In other words, you had an effort by the Arizona Attorney General's office to try to harmonize language in the state constitution about eligibility. But what the folks behind this amendment ultimately concluded was that it was important that the Arizona Constitution speak clearly about. eligibility. And so maybe you could talk a little bit about how that kind of policy or political need sometimes drives change, even where the law or tradition or both have in fact changed, but the language hasn't caught up. What does that mean to a state, to a government, to the body of law, and frankly, to the voters to try to bring the law together and up to date?
Speaker #0
I think this is just such an interesting story. It is very clear that the people of Arizona wanted women to participate in the body politic fully. And that's like one of the fascinating stories about Arizona statehood, right? That we didn't include this in our state constitution originally because there was concerns about us actually becoming a state. And so the very first time the people of Arizona have the opportunity to use this amazing power to change the constitution. They do so and they say women can vote and women can hold office. And women historically do vote and hold office in Arizona, right? I work at the Sandra Day O'Connor College of Law. And before Justice O'Connor was the first woman on the Supreme Court, she was a member of the Arizona state legislature and elected to state office. as a woman, thanks to this amazing 1914 constitutional amendment that gives suffrage and the right to hold office. But that amendment didn't change other language in the constitution that suggested in order to hold office, you were a male. And that is actually consistent with a lot of law in this country that's written at least using the male pronoun. So you can read lots of, I also write about tax law. A lot of the federal income tax code talks about his income. And generally the way we harmonize this is we just say, oh, well, what we really mean by his is inclusive of either him or her today, potentially all gender expression. We should read the male language as somehow gender neutral. That is sort of longstanding interpretation of... many kinds of law is for us to do that.
Speaker #1
So just to take that point, Professor Scharf, there's a provision in the Arizona Code that purports to do that operation, right? To say that his and her, for example, are equivalent no matter what the underlying statute might say.
Speaker #0
And I think that's what's so extraordinary about the second moment of constitutional amendment, which is it's the people saying, we understand that women can hold office. We've just elected a female governor. But to honor that moment, we want our constitution to explicitly be inclusive. And it is a moment of inclusivity in the context of a constitution that is thought about and struggled with, how inclusive it wants to be. And I think it's a really exciting constitutional moment.
Speaker #1
Continuing in that vein. Professor Scharf, I wonder if you could talk a little bit about the Arizona Constitution and the role of direct democracy in it. You know, not every state, although a lot of states, allow voters to directly amend the Constitution like we do. Maybe you could talk a little bit about that in context for us.
Speaker #0
It's one of the reasons I love studying state constitutional law and Arizona constitutional law specifically. The federal constitution is all but impossible to amend. We've amended it. only a handful of times because the process is really difficult. The people of Arizona, when they enacted the Arizona Constitution, when we became a state, wanted our Constitution to be much more a living document, responsive to the people, and were deeply committed to the idea of democracy and the sovereignty of some concept of the body politic of the people. and There are a number of ways the Arizona Constitution is committed to direct democracy. We have more statewide directly elected officials than any state in the country. We've just added a new one. But we also have this power and we do regularly exercise it to amend our Constitution to say, look, our basic rules for how we govern ourselves aren't working. We're going to change them. And we do it almost every election cycle.
Speaker #2
You, as an Arizona voter, have the power to change the Constitution. There are a few ways that amendments can be made. The first is a citizen-initiated process. The second is a legislative process, which is essentially what we saw here with Rose Moffitt.
Speaker #1
Right, and for a citizen-initiated process, the Arizona Constitution requires valid signatures from 15% of qualified electors to place an initiative proposing a constitutional amendment on the ballot. So for 2026, that would be 383,923 signatures.
Speaker #2
And the person or organization putting forward the initiative must file these signatures with the Arizona Secretary of State's office at least four months prior to the next general election. If you get enough signatures, then the amendment will be placed on the next general election ballot.
Speaker #1
So we'll see here for 2026, if there are going to be constitutional amendments initiated by voters, they're going to have to start circulating their petitions. And they'll have to file them by July 2nd, 2026. We have the steps for preparing an initiative linked in the show notes. Thanks for listening to Beyond the Ballot AZ. I'm Tom Collins.
Speaker #2
And I'm Gina Roberts. Tap the plus icon on your podcast app to follow the show so you know as soon as we release new episodes.

Description

In this episode, we’re talking about conflicts in the Arizona constitution and the power Arizonans have to change the constitution.

The steps for preparing an initiative

Arizona Memory Project newspapers

Hosted on Ausha. See ausha.co/privacy-policy for more information.

Transcription

Speaker #0
We understand that women can hold office. We've just elected a female governor. But to honor that moment, we want our Constitution to explicitly be inclusive.
Speaker #1
How does our Constitution stay relevant in a rapidly changing world? Today, the nuances of language and amendments that affect Arizonans.
Speaker #2
You're listening to Beyond the Ballot AZ. I'm Gina Roberts, Voter Education Director at the Arizona Clean Elections Commission.
Speaker #1
And I'm Tom Collins, Executive Director.
Speaker #2
So we sort of fell down this rabbit hole when we were pitching an episode on Rose Moffitt, who was the first woman to hold the position of Secretary of State and later on Governor of Arizona. Our research dug up a 1988 state amendment that removed language that said only men were eligible for state office. But that amendment actually came a few months after Moffat had already succeeded to the governorship.
Speaker #1
And I think it's important to say here that this was really more of a social and political change. I mean, strictly, legally speaking, there was language from a 1912 amendment that had already given women the right to hold public office in Arizona. So the drive to make this change was one driven by social and political motives.
Speaker #2
Exactly. Arizonans stood up and they said, this is not something that I want written in my constitution. But that leads us to an intriguing question. How does our legal framework deal with conflicting language?
Speaker #1
We are here with Professor Aaron Scharf, who is the Willard H. Pedrick Distinguished Research Scholar at the Sandra Day O'Connor College of Law at Arizona State University. Professor Scharf, thanks for joining Beyond the Ballot AZ.
Speaker #0
Thanks for having me.
Speaker #1
So this episode is about a change to. I think what we might call archaic law in the Arizona Constitution. And one of the things that comes up in this story is the fact that you had some conflicting language in the Constitution about who was eligible to serve as governor and these other executive offices. So how does that kind of thing work out in law typically?
Speaker #0
So conflicts within bodies of law happen all the time. There are conflicts between constitutional law and legislative-made law, statutory law. And there are also conflicts within constitutional law and legislative-made statutory law. And generally speaking, the higher the level of authority wins. So if a statute conflicts with the Constitution, the Constitution wins. And then within... law that is operating at the same level. So a statute that conflicts with another enacted statute by the legislature, or a constitutional amendment that conflicts with other language of the Constitution enacted by the people, at least within the context of the state of Arizona, the latter in time enacted provision prevails. There's also a desire to try to read these things harmoniously. But sometimes they can't be. And I think we're talking today about a time when they just can't be read harmoniously.
Speaker #1
Right, right. I mean, apparently there was some effort to do that. And that sort of gets into the next question. In other words, you had an effort by the Arizona Attorney General's office to try to harmonize language in the state constitution about eligibility. But what the folks behind this amendment ultimately concluded was that it was important that the Arizona Constitution speak clearly about. eligibility. And so maybe you could talk a little bit about how that kind of policy or political need sometimes drives change, even where the law or tradition or both have in fact changed, but the language hasn't caught up. What does that mean to a state, to a government, to the body of law, and frankly, to the voters to try to bring the law together and up to date?
Speaker #0
I think this is just such an interesting story. It is very clear that the people of Arizona wanted women to participate in the body politic fully. And that's like one of the fascinating stories about Arizona statehood, right? That we didn't include this in our state constitution originally because there was concerns about us actually becoming a state. And so the very first time the people of Arizona have the opportunity to use this amazing power to change the constitution. They do so and they say women can vote and women can hold office. And women historically do vote and hold office in Arizona, right? I work at the Sandra Day O'Connor College of Law. And before Justice O'Connor was the first woman on the Supreme Court, she was a member of the Arizona state legislature and elected to state office. as a woman, thanks to this amazing 1914 constitutional amendment that gives suffrage and the right to hold office. But that amendment didn't change other language in the constitution that suggested in order to hold office, you were a male. And that is actually consistent with a lot of law in this country that's written at least using the male pronoun. So you can read lots of, I also write about tax law. A lot of the federal income tax code talks about his income. And generally the way we harmonize this is we just say, oh, well, what we really mean by his is inclusive of either him or her today, potentially all gender expression. We should read the male language as somehow gender neutral. That is sort of longstanding interpretation of... many kinds of law is for us to do that.
Speaker #1
So just to take that point, Professor Scharf, there's a provision in the Arizona Code that purports to do that operation, right? To say that his and her, for example, are equivalent no matter what the underlying statute might say.
Speaker #0
And I think that's what's so extraordinary about the second moment of constitutional amendment, which is it's the people saying, we understand that women can hold office. We've just elected a female governor. But to honor that moment, we want our constitution to explicitly be inclusive. And it is a moment of inclusivity in the context of a constitution that is thought about and struggled with, how inclusive it wants to be. And I think it's a really exciting constitutional moment.
Speaker #1
Continuing in that vein. Professor Scharf, I wonder if you could talk a little bit about the Arizona Constitution and the role of direct democracy in it. You know, not every state, although a lot of states, allow voters to directly amend the Constitution like we do. Maybe you could talk a little bit about that in context for us.
Speaker #0
It's one of the reasons I love studying state constitutional law and Arizona constitutional law specifically. The federal constitution is all but impossible to amend. We've amended it. only a handful of times because the process is really difficult. The people of Arizona, when they enacted the Arizona Constitution, when we became a state, wanted our Constitution to be much more a living document, responsive to the people, and were deeply committed to the idea of democracy and the sovereignty of some concept of the body politic of the people. and There are a number of ways the Arizona Constitution is committed to direct democracy. We have more statewide directly elected officials than any state in the country. We've just added a new one. But we also have this power and we do regularly exercise it to amend our Constitution to say, look, our basic rules for how we govern ourselves aren't working. We're going to change them. And we do it almost every election cycle.
Speaker #2
You, as an Arizona voter, have the power to change the Constitution. There are a few ways that amendments can be made. The first is a citizen-initiated process. The second is a legislative process, which is essentially what we saw here with Rose Moffitt.
Speaker #1
Right, and for a citizen-initiated process, the Arizona Constitution requires valid signatures from 15% of qualified electors to place an initiative proposing a constitutional amendment on the ballot. So for 2026, that would be 383,923 signatures.
Speaker #2
And the person or organization putting forward the initiative must file these signatures with the Arizona Secretary of State's office at least four months prior to the next general election. If you get enough signatures, then the amendment will be placed on the next general election ballot.
Speaker #1
So we'll see here for 2026, if there are going to be constitutional amendments initiated by voters, they're going to have to start circulating their petitions. And they'll have to file them by July 2nd, 2026. We have the steps for preparing an initiative linked in the show notes. Thanks for listening to Beyond the Ballot AZ. I'm Tom Collins.
Speaker #2
And I'm Gina Roberts. Tap the plus icon on your podcast app to follow the show so you know as soon as we release new episodes.

Embed