IN THE SUPREME COURT OF ARIZONA

JAIME A. MOLERA, an individual
and qualified elector; ARIZONANS
FOR GREAT SCHOOLS AND A
STRONG ECONOMY, a political
action committee,

Arizona Supreme Court
No. CV-20-0213-AP/EL
Maricopa County Superior Court
No. CV2020-007964

Plaintiffs/Appellees/CrossAppellants,
v.
KATIE HOBBS, in her official
capacity as Arizona Secretary of State;
INVEST IN EDUCATION
(SPONSORED BY AEA AND
STAND FOR CHILDREN), a political
action committee,
Defendants/Appellants/CrossAppellees.

OPENING BRIEF ON CROSS APPEAL OF JAIME A. MOLERA &
ARIZONANS FOR GREAT SCHOOLS & A STRONG ECONOMY

Brett W. Johnson
Eric H. Spencer
Colin P. Ahler
SNELL & WILMER L.L.P.
One Arizona Center
400 E. Van Buren, Suite 1900
Phoenix, Arizona 85004
Telephone: 602.382.6000
bwjohnson@swlaw.com

Dominic E. Draye
Counsel of Record
GREENBERG TRAURIG, LLP
2375 East Camelback Road
Phoenix, Arizona 85016
Telephone: 602.445.8000
drayed@gtlaw.com

Attorneys for Plaintiffs/Appellees/Cross-Appellants

 TABLE OF CONTENTS
Table of Contents ....................................................................................................... i
Introduction ................................................................................................................1
Statement of Facts & the Case ...................................................................................2
A.

Petition Circulation. ..............................................................................3

B.

The Current Lawsuit............................................................................10

Issues Presented .......................................................................................................12
Standard of Review ..................................................................................................12
Argument..................................................................................................................12
I.

Petition Partners’ Pay Scales and “Spin the Wheel” Promotion
Violated Section 19-118.01(A)...................................................................... 13
A.

Arizona Law Broadly Prohibits Payment “Based on the Number
of Signatures Collected.”.....................................................................14

B.

Petition Partners’ Pay Scales Unlawfully Set Compensation
Based on the Number of Signatures Collected. ..................................17

C.

The “Spin the Wheel” Program Unlawfully Compensated
Circulators Based on the Number of Signatures Collected.................22

II.

Section 19-118.01(A) Disqualifies All “[s]ignatures that are obtained
by a paid circulator who violates this section.” ............................................. 24

III.

Alternatively, the Superior Court Should Have Entered a Temporary
Injunction to Allow Discovery of How Many Circulators Were Paid
Unlawfully. .................................................................................................... 26

Conclusion ...............................................................................................................28
Certificate of Compliance ........................................................................................30

i

 INTRODUCTION
The right to submit an initiative to the people is so important that state law
protects the process from abuse. The Arizona Constitution expressly instructs the
Legislature to enact “registration and other laws to secure the purity of elections and
guard against abuses of the elective franchise.”

Ariz. Const. art. VII, § 12.

Consistent with the notion that the people have a right to legislate equal to that of
the Legislature, this Court has explained that “[j]ust as the legislature must comply
with restrictions on its lawmaking powers, so too must the people comply with
appropriate regulation of the initiative process.” Molera v. Reagan, 245 Ariz. 291,
294 ¶ 10 (2018) (citations omitted). Two such regulations are at issue in this case.
The first concerns the requirement that initiative sponsors provide voters with a 100word description of the “principal provisions” of their proposed law. A.R.S. § 19102(A). This requirement serves the “important purposes of transparency, fairness,
and disclosure.” Molera, 245 Ariz. at 299 ¶ 32.
The second regulation concerns the payment of petition circulators. Petition
backers have a constitutional right to employ paid circulators. Meyer v. Grant, 486
U.S. 414, 424 (1988). At the same time, “States allowing ballot initiatives have
considerable leeway to protect the integrity and reliability of the initiative process.”
Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 191 (1999). In
Arizona, the Legislature has protected the initiative process by regulating the manner
in which petition circulators are paid. Specifically, to eliminate an incentive for
fraud that is essentially impossible to detect after the fact, the Legislature prohibited
1

 payment of “money or any other thing of value based on the number of signatures
collected.” A.R.S. § 19-118.01(A). Where paid circulators do not follow the rules,
“[s]ignatures that are obtained by a paid circulator who violates this section are void
and shall not be counted in determining the legal sufficiency of the petition.” Id.
The superior court correctly applied the transparency requirement in Section
19-102(A) by insisting on disclosure of all principal provisions in the “Invest in
Education Act” (the “Initiative”). E.g., Order at 5 ¶ 8 (citing Molera, 245 Ariz. at
298 ¶ 27). But it made three legal errors regarding the payment of circulators. Those
errors create loopholes that are inconsistent with the text of the statute and undermine
its purpose. Arizona’s policymakers have exercised their “considerable leeway” to
protect the initiative process from abuse, and this Court should insist on a faithful
application of those laws.
STATEMENT OF FACTS & THE CASE
This unfortunate waste of resources began when the Committee Defendant
applied for a serial number from the Secretary of State on January 13, 2020 and,
pursuant to A.R.S. § 19-111(A), included in its application the proposed initiative
text and 100-word description. Two years earlier, this Court decided Molera v.
Reagan, 245 Ariz. 291 (2018), which should have provided ample guidance on how
to describe a tax increase, including the importance of who would be taxed and how
much their rate would change from current levels. Defendant ignored that counsel
and instead chose language even less clear than the description in Molera. A second
helping hand extended toward Defendant on February 10, 2020, when the
2

 nonpartisan Arizona Legislative Council recommended a variety of changes and
identified a crucial provision—one never mentioned in the 100-word description—
as “likely unconstitutional.” Complaint Exhibit B. Four days later, after making
only cosmetic adjustments to their proposal, Defendant refiled with the Secretary of
State, who assigned the final version serial number I-31-2020. At that point, the
sponsors began circulating the Initiative with the following 100-word description:
The [Initiative] provides additional funding for public education by
establishing a 3.5% surcharge on taxable income above $250,000
annually for single persons or married persons filing separately, and on
taxable income above $500,000 annually for married persons filing
jointly or head of household filers; dedicates additional revenue to (a)
hire and increase salaries for teachers, classroom support personnel and
student support services personnel, (b) mentoring and retention
programs for new classroom teachers, (c) career training and postsecondary preparation programs, (d) Arizona Teachers Academy;
amends the Arizona Teachers Academy statute; requires annual
accounting of additional revenue.
Complaint Exhibit A.
A.

Petition Circulation.

To amass signatures in support of placing the Initiative on the ballot,
Defendant hired AZ Petition Partners, LLC (“Petition Partners”) to retain petition
circulators.

By statute, a “paid circulator” is “a natural person who receives

monetary or other compensation for obtaining signatures on a statewide initiative or
referendum petition or for circulating statewide initiative or referendum petitions for
signatures.” A.R.S. § 19-118(I)(1). Elsewhere, the law prohibits giving a paid
circulator “money or any other thing of value based on the number of signatures
collected.” A.R.S. § 19-118.01(A). In an attempt to circumvent that rule, Petition
3

 Partners devised a variety of employment agreements with varying dependence on
the number of signatures collected. The first iteration included an hourly rate that
increased with consecutive weeks of hitting signature quotas expressed as
“productivity expectations”:
4.1 Hourly Rate. Employee’s initial rate of pay will be
$12.00 per hour. After two full pay cycles, and provided that
Employee’s performance exceeds productivity expectations, Employee
will be eligible for a pay increase to $13.50 per hour. After four full
pay cycles, and provided that Employee’s performance continues to
exceed productivity expectations, Employee will be eligible for a
further pay increase to $15.00 per hour. To be eligible for a pay rate
greater than $15.00 per hour, Employee must be promoted to a Team
Lead position. . . .
Trial Exhibit (“Ex.”) 57. The employment agreement included as an attachment
“Work Hours and Performance and Conduct Standards,” which defined
“productivity expectations” in terms of signatures obtained:
Performance Standards (“PS”)
1. The minimum productivity expectation is to gather an average of 610 valid signatures per hour of work. Company personnel will
regularly review Employee’s work hours and signature numbers in
the Deputy App to assess productivity, and will take remedial action,
up to and including termination of employment, if Employee is not
meeting minimum expectations.
2. Company will use the following guidelines for determining whether
Employee is meeting or exceeding productivity expectations:
a. Employees working 30 hours per week are expected to take
out at least 20 blank pages per week.
b. Employees working 35 hours per week are expected to take
out at least 25 blank pages per week.
4

 c. Employees working 40 hours per week are expected to take
out at least 30 blank pages per week.
However many blank pages Employee takes out each week, the
minimum expectation is that at least 60% of these pages will be
full pages when submitted at the end of the week. A “full page”
is one on which every signature line is completely and accurately
filled out. Employees must aim for a validity rate of 70% or
higher each week.
Ex. 57 at Exhibit A. Petition Partners also included their company’s “Code of
Conduct” requirements. Id.
Petition Partners used the foregoing pay scale through December 2019, at
which point they adopted a revised policy with six distinct pay grades. Because
Defendant did not file the Initiative until February 2020, 7/29/20 AM Tr. at 7, all
paid circulators began working under the pay scale announced in December 2019.
Advancement through the grades was based on compliance with the code of conduct
and the number of signatures collected:
P0 – Petitioner 0
More than 8 signatures per hour with a specific focus on a particular
petition (must have prior approval from senior management) and meets
all standards in the employee code of conduct = $15/hr.
P1 – Petitioner 1
2.0 – 2.49 sets per hour and meets all standards in the employee code
of conduct = $12/hr.
P2 – Petitioner 2
2.5 – 3.49 sets per hour and meets all standards in the employee code
of conduct = $13.50/hr.
P3 – Petitioner 3

5

 3.5 – 4.99 sets per hour and meets all standards in the employee code
of conduct = $15.00/hr.
P4 – Petitioner 4
5.0 – 6.0 sets per hour and meets all standards in the employee code of
conduct = $18.00/hr.
P5 – Petitioner 5
More than 6 sets per hour and meets all standards in the employee code
of conduct - $25/hr.
Ex. 58. Petition Partners defined a “set” as “an equal number of signatures on how
many petitions [the circulator] ha[s].” 7/28/20 PM Tr. at 72–73.
In response to Covid-19, Petition Partners instituted a similar pay scale on
April 5, 2020 for door-to-door circulators. Ex. 58. It was also a tiered, hourly setrequirement pay scale. In June 2020, the pay scale increased to nine tiers, and the
wages likewise increased. Unlike the December scale, the April and June scales
made no reference to the Petition Partners’ employee code of conduct. Exs. 23 &
58. Structurally, the revised scale continued to pay circulators based on the number
of signatures they collected:
AZ Pricing structure
***If you don’t work 20 hours, you will be paid $15/hr regardless
of average***
Minimum of 2 sets per hour and 20 hours per week to stay on the
schedule.
P1- Petitioner 1
2.0-2.49 sets per hour = $13.50/hr
P2- Petitioner 2
6

 2.5-2.9 sets per hour = $15.00/hr
Starting wage (Must have a minimum of 20 hrs/week)
P3- Petitioner 3
3.0-3.9 sets per hour = $20.00/hr
P4- Petitioner 4
4.0-5.49 sets per hour = $25.00/hr
P5- Petitioner 5
5.5-6.49 sets per hour = $30.00/hr. (Overtime = $45.00/hr.)
P6- Petitioner 6
6.5-7.49 sets per hour = $45/hr. (Overtime = $67.50/hr.)
P7- Petitioner 7
7.5-8.49 sets per hour = $50/hr. (Overtime = $75.00/hr.)
P8-Petitioner 8
8.5-9.9 sets per hour = $65/hr. (Overtime = $97.50/hr.)
P9- Petitioner 9
10 sets and over per hour = $75/hr. (Overtime = $112.50/hr.)
Ex. 23 (Az Pricing structure Updated 6/15/20).
These pay scales applied to all paid circulators. 7/28/20 PM Tr. at 16; 7/29/20
PM Tr. at 27 (these documents “loom[ed] over everybody”). Petition Partners
measured “productivity” by the number of sets collected. 7/28/20 AM Tr. at 83–85;
7/28/20 PM Tr. at 53–54; 7/29/20 AM Tr. at 66 (noting their payment scheme was
based on a “scale of productivity”). Andrew Chavez, the owner of Petition Partners,
called the pay scale a “condition of employment.” 7/29/20 AM Tr. at 80.
Raises occurred at weekly intervals. 7/28/20 AM Tr. at 82 (“I would look at
the hours you worked, the approximate sets that you turned in, and we would average

7

 that, say fantastic, thank you for working so hard, we’d like to give you a promotion
to the next pay level for the next 7 days going forward.”), 85 (“[Y]ou’re exceeding
expectations, we would want to move you up $30 an hour for the next week moving
forward.”).
Payment also decreased for circulators who did not collect enough signatures.
7/28/20 AM Tr. at 85 (admitting that circulators would move down a pay grade);
92–93 (recognizing that circulators who collected fewer signatures per hour than
required, while not terminated, received less pay). While Defendant claimed that
wages and promotions were discretionary, the Petition Partners witnesses admitted
that there was no document conferring such discretion. 7/28/20 PM Tr. at 15–18.
And, regardless of which pay scale applied and whether it contained a discretionary
element or not, Petition Partners in fact always considered the number of sets
collected when determining the next week’s pay. 7/28/20 PM Tr. at 54, 69.
In addition to the tiered pay scales, Petition Partners instituted several
promotional programs, some of which were also based on the number of signatures
collected. One of those programs—“show me the MONEY!”—awarded raffle
tickets: one ticket for every 20 sets, ten more tickets for 200 sets, and 220 tickets for
circulators who turned in 2,000 sets. Ex. 28. Under the “Weekend Warrior”
program, circulators received a cash bonus if they agreed to work at least 5 hours on
Friday, at least 5 hours on Saturday (and 5 hours on Sunday for extra money), and
“[m]aintain at least 3 sets per hour.” Ex. 29. Finally, they instituted a “Spin the
Wheel” Bonus:

8

 If you work at least 20 hours, maintain at least 3 sets per hour
AND
You increase your productivity from the week before… you get 1 spin!
If you work over 30 hours and maintain at least 3 sets, you get 2 spins!!!
Ex. 10-019.

Consistent with its documentation, Petition Partners determined

eligibility to spin the wheel based on the number of sets that a circulator self-reported
during the weekly “turn in” process. 7/28/20 PM Tr. at 105.
The possible rewards on the wheel of prizes were: $10, $20, $25, $50, $100,
“Add an hour to your check,” and “Double your spin.” Ex. 66. The wheel did not
include any outcomes that did not confer a prize. In effect, the program was simply
a bonus with variable amounts. 7/28/20 AM Tr. at 49 (circulator testimony that he
won something every time); see also 7/28/20 PM Tr. at 88 (stating that everyone
who spun “won at least $10”). Petition Partners paid many of these bonuses in cash
and did not track how many circulators were eligible to receive, or did in fact receive,
a spin-the-wheel prize. 7/28/20 PM Tr. at 105, 115; 7/29/20 AM Tr. at 20–21.
Each of these programs was based in whole or part on the number of
signatures collected. And Petition Partners pushed “productivity” continuously
throughout the signature gathering cycle. See generally Ex. 10.
As a result of their efforts, Petition Partners collected over 400,000 signatures
for the Initiative, over 350,000 of which were obtained by paid circulators. 7/28/20
PM Tr. at 76 (over 400,000 signatures); 7/29/20 AM Tr. at 8 (over 350,000 by paid
circulators).1

1

Volunteers collected the remaining 50,000 signatures. See 7/29/20 AM Tr. at 42.
9

 B.

The Current Lawsuit.

Outraged by the unlawful payment of circulators and a 100-word description
that omitted numerous provisions and misleadingly described others, Plaintiffs
brought this suit. Following motions practice and a three-day trial, the superior court
rightly determined that the 100-word description was misleading. It reasoned that
the 100-word description failed to include five principal provisions, Order at 4–8,
and created a substantial risk of confusion by describing a tax increase as a new
“surcharge” without mentioning existing tax rates, the proposed new rate, or the
percentage increase between the two, id. at 8–10. The court noted its frustration with
these failures because this Court had identified “exactly how IIE could accomplish
precisely what IIE seeks to accomplish” less than two years before. Id. at 19 n.15.
As to the payment of circulators, the superior court agreed that several
payment schemes were improper: “Dual for the dollars,” productivity bonuses, the
“show me the MONEY!” program, and “Weekend Warrior” bonuses. Id. at 12 ¶ 20.
The superior court’s holding regarding the “Spin the wheel” promotion is difficult
to parse. It referred to the same program by its exhibit number when listing unlawful
compensation, id. (citing Ex. 10-019), but elsewhere stated that it was permissible
based on the lack of a “correlation [between] actual number of signatures turned in
and a circulator’s ability to ‘spin the wheel,’” id. at 11 ¶ 18. It appears that the court
mistook the two exhibits—Exs. 10-019 and 66—as referring to separate programs,
when they were actually the same thing.
The court also determined that the hourly baseline salaries—i.e., the tiered
pay scales discussed above—were permissible because the wages were applicable
10

 to the upcoming week, even if they were based on the number of signatures collected
during the previous week. Order at 11 ¶ 17.
In terms of remedies, the court found little “guidance about the actual standard
to be used” when implementing the statutory command that “[s]ignatures that are
obtained by a paid circulator who violates this section are void and shall not be
counted in determining the legal sufficiency of the petition.” at 13 ¶ 25 & n.13;
A.R.S. § 19-118.01(A). The court therefore imported a “fruit of the poisonous tree”
test from Fourth Amendment jurisprudence to conclude that only a subset of the
signatures collected by offending circulators—specifically, those obtained during a
week in which the circulator broke the law—should be disqualified. Order at 13
¶ 25 & n.13. Neither the “poisonous tree” test nor any suggestion that only a subset
of signatures should be disqualified appears in the statute.
Finally, assuming that only a subset of the signatures collected by circulators
who violated Section 19-118.01 should be excluded, the court determined that a
temporary injunction should not issue. The court recognized that Plaintiffs had
justified the injunction on grounds that Defendant did not keep (or produce) records
that would enable Plaintiffs to establish the number of invalid signatures under the
court’s “poisonous tree” rule. Id. at 15–16 ¶ 29. But because the programs the court
invalidated appeared unlikely to disqualify enough signatures to make the Initiative
ineligible for the ballot, the court denied the injunction. Id. at 16–17 ¶¶ 30–33.
Defendant promptly appealed, followed by Plaintiffs’ cross-appeal. This
Court has jurisdiction over this expedited election matter under Ariz. Const. art. VI,
§ 5 and A.R.S. § 19-122.
11

 ISSUES PRESENTED
1. Whether the superior court erred in holding that Petition Partners’ hourly
pay scales and “spin the wheel” promotion did not violate A.R.S. § 19118.01(A).
2. Whether the superior court erred by holding that A.R.S. § 19-118.01(A)
disqualifies only a subset of the “[s]ignatures that are obtained by a paid
circulator who violates this section.”
3. In the alternative, whether the superior court erred by denying Plaintiffs’
request for a temporary injunction.
STANDARD OF REVIEW
This Court reviews questions of statutory interpretation de novo. See City of
Tucson v. Clear Channel Outdoor, Inc., 209 Ariz. 544, 547 ¶ 8 (2005). A number
of undisputed facts comprise the compensation programs in this case. Whether those
programs violate A.R.S. § 19-118.01 is a question of law, or at most presents a mixed
question of law and fact, which this Court reviews de novo. See Tovrea Land &
Cattle Co. v. Linsenmeyer, 100 Ariz. 107, 114 (1966).
ARGUMENT
Section 19-118.01(A) is straightforward and encompasses any compensation
scheme “based on the number of signatures collected.” Other compensation models
remain lawful (e.g., hourly pay, incentives for tenure, and bonuses for recruiting
others or working on weekends). The superior court was correct in a number of its

12

 holdings applying this statute. See Order at 12 ¶ 20. But it made three legal errors:
first, concerning the scope of compensation “based on the number of signatures
collected”; second, limiting the statutory remedy; and third, in the alternative,
denying Plaintiffs’ request for a temporary injunction.
I.

Petition Partners’ Pay Scales and “Spin the Wheel” Promotion Violated
Section 19-118.01(A).
In terms of the statute’s scope, the superior court correctly interpreted Section

19-118.01(A) to hold unlawful four compensation programs employed by
Defendant’s circulation vendor, Petition Partners. Id. These payments included
prizes for the circulator who collected the most signatures in a head-to-head
competition, productivity bonuses, signature-based raffle tickets, and hourly
bonuses based on minimum signatures. Id.; Ex. 10 at 7, 10–13, 19–21; Ex. 28; and
Ex. 29. Each payment under these arrangements was “based on the number of
signatures collected.”
compensation scheme.

But so were two other features of Petition Partners’
First, beginning in December 2019, the company

promulgated a pay scale that set hourly pay based on how many signatures a
circulator had collected. Exs. 10 & 11. Second, Petition Partners awarded prizes to
circulators who gathered more than a threshold number of signatures.

The

circulators spun a wheel—once or twice, depending on how many signatures they
collected—to determine which prize they claimed. Exs. 10-019 & 66. The superior
court erred in failing to recognize that these programs paid circulators “based on the
number of signatures collected.”

13

 Concerning the remedy for violations, Section 19-118.01(A) expressly states
the consequences of unlawful payment: “[s]ignatures that are obtained by a paid
circulator who violates this section are void and shall not be counted in determining
the legal sufficiency of the petition.” A.R.S. § 19-118.01(A). The remedy attaches
to the circulator—“[s]ignatures obtained by a paid circulator who violates this
section . . . .” Id. All of the signatures obtained by such circulators thus stand or fall
together. The superior court erred in proposing a more complicated remedy that
would sift through an offending circulator’s signatures to identify a subset of them
that “shall not be counted in determining the legal sufficiency of the petition.” Id.
That is not what the statute says, and implementing this alternative remedy would
be impracticable on the short timelines for petition challenges. This Court should
enforce the simple remedy provided by the Legislature.
A. Arizona Law Broadly Prohibits Payment “Based on the Number of
Signatures Collected.”
The superior court correctly rejected Defendant’s invitation to rewrite Section
19-118.01(A). Defendant argued that legislative history and other States’ policy
choices require construing “based on” to mean “per signature.” That is not a faithful
reading of the law, and the superior court correctly rejected it. Order at 10.
“[T]he best and most reliable ind[icator] of a statute’s meaning is its language
and, when the language is clear and unequivocal, it is determinative of the statute’s
construction.” State v. Hansen, 215 Ariz. 287, 289 ¶ 7 (2007). “In giving effect to
every word or phrase, the court must assign to the language its usual and commonly

14

 understood meaning unless the legislature clearly intended a different meaning.”
Bilke v. State, 206 Ariz. 462, 464–65 ¶ 11 (2002) (quotation omitted).
As the superior court noted, the language of this statute is “not ambiguous.”
Order at 10. Indeed, “based on” indicates a broad connection between two things,
as numerous courts have recognized. See, e.g., United States v. Ellison, 664 F.
App’x 507, 510 (6th Cir. 2016) (“based in meaningful part on”); McDaniel v.
Chevron Corp., 203 F.3d 1099, 1111 (9th Cir. 2000) (“arising from”); Webster’s
Third New International Dictionary 180 (1986) (“used as a base or basis for”).
Section 19-118.01(A) thus applies to any payment that arises from or is dependent
upon the number of signatures collected. And a payment is “based on” the number
of signatures even if it is also based on other factors—the statute does not include
anything to indicate a special, exclusive meaning of “based on.” See, e.g., U.S. ex
rel. Lindenthal v. Gen. Dynam. Corp., 61 F.3d 1402, 1409 (9th Cir. 1995) (stating
that “based on” includes actions “based in any part on”); Sierra Club v. E.P.A., 356
F.3d 296, 306 (D.C. Cir. 2004) (rejecting the argument that “based on” means “sole
basis”).
Replacing the statute’s “based on” language with a per-signature requirement
or interpreting it narrowly to mean “sole basis” would undermine its effectiveness
as a fraud-prevention measure.

The signature-collection industry could easily

circumvent a per-signature rule by, for example, offering bonuses at 25 signatures,
30 signatures, 35, 40, and so on—similar to what Petition Partners did here. See,
e.g., In re Initiative Petition No. 379, State Question No. 726, 155 P.3d 32, 37–38
¶ 15 (Okla. 2006) (describing several methods of basing compensation on signatures
15

 collected); Wolfe v. Brown, 432 P.3d 1121, 1127 (Or. Ct. App. 2018) (noting that
combining an hourly wage with a minimum-signature requirement produced “a close
correlation between the number of signatures circulators gathered and the
circulators’ pay”). A “sole basis” rule would not solve the incentive for circulators
to cut corners and submit signatures that are inaccurate, ineligible, or provided by
someone other than the purported signer.
Defendant has no textual response. In the superior court, it resorted instead
to an argument from “legislative history” and “intent.” This Court, however, has
made clear that it is “inappropriate” for courts to “delve into the legislative history
of a statute that is unambiguous on its face and then proceed to rewrite it in
accordance with [the court’s] view of what the Legislature probably intended but
poorly expressed.” Hahn v. Indus. Comm’n of Ariz., 227 Ariz. 72, 76 ¶ 17 (App.
2011); see also Silver v. Pueblo Del Sol Water Co., 244 Ariz. 553, 559 ¶ 22 (2018).
Even if it were appropriate to consider, legislative history confirms the plain
meaning of the text. Section 19-118.01’s proponents noted that payment “based on
the number of signatures collected” incentivized fraud and slovenly signature
collection.

See generally http://azleg.granicus.com/MediaPlayer.php?view_id

=13&clip_id=19169. The drafters of Section 19-118.01 thus intended to prevent all
improper incentive payment schemes, which is exactly what they did in the text of
the statute they enacted.

16

 B.

Petition Partners’ Pay Scales Unlawfully Set Compensation Based
on the Number of Signatures Collected.

Unlike compensation based solely on time worked or some other neutral
criterion, Petition Partners paid circulators different hourly rates based on the
number of signatures they collected. The superior court incorrectly approved this
structure because Petition Partners adjusted hourly wages for the upcoming week,
Order at 11 ¶ 17, overlooking the fact that forward-looking rates can still be based
on the number of signatures collected—in this case, collected the week before. As
long as a circulator knows that the pay scale for the following week varies with the
number of signatures collected this week, the incentives targeted by Section 19118.01 persist. As a matter of text and logic, prospective wages based on past
signature collections are “based on the number of signatures collected.”
Before December 2019, Petition Partners paid largely by the hour, but
nevertheless

instituted

“performance

standards”

including

“productivity

expectations” based on circulators returning 60% of the mandatory sheets as “full
pages.” Ex. 57 at Exhibit A. That pay scale is not before the Court. The revised
pay scale in December 2019—which was in effect when the Initiative began
circulating—tightened the connection between signatures and pay by instituting a
scheme that adjusted circulators’ compensation each week. 7/28/20 PM Tr. at 17
(stating the pay could be adjusted after the first “turn in”), 57–58 (subsequent
adjustments possible each week). It did so according to a payment schedule that
paid different wages based on two things: (1) how many signatures a given circulator
collected and (2) compliance with the company’s code of conduct. Ex. 58. The

17

 December pay schedule, along with the April door-to-door and June schedules, all
included signature-based wages and “applie[d] to everybody.” Exs. 23 & 58;
7/28/20 PM Tr. at 16.
Petition Partners’ manager, Tom Bilsten, testified that his company tracked
the number of signatures collected and used that information to “have a conversation
with each circulator when they turned in about their productivity in analyzing their
ability to get promoted for the next week coming up.” 7/28/20 AM Tr. at 82.
Unsurprisingly, “productivity” referred to the number of signatures a circulator
turned in. 7/28/20 AM Tr. at 83–85. And it was this “productivity” that determined
pay: “I would look at the hours you worked, the approximate sets that you turned in,
and we would average that, say fantastic, thank you for working so hard, we’d like
to give you a promotion to the next pay level for the next 7 days going forward.”
7/28/20 AM Tr. at 82.
In failing to recognize that the pay scales were “based on the number of
signatures collected,” the superior court appeared to focus on the general ability of
employers to increase wages based on productivity: “Like any other employer, if an
employee (a petition circulator) previously has performed job responsibilities well
and in accordance with company policy, an employer is within its right to exercise
discretion and increase future hourly compensation.”

Order at 11 ¶ 17.

But

signature-gatherers are not “[l]ike any other employer” because signature collection
must comply with Section 19-118.01.
Moreover, there is nothing in the documents to suggest that the pay scales
were discretionary with respect to the number of signatures collected. The pay scales
18

 themselves make no reference to discretion, and there is no evidence that Petition
Partners ever refused to pay a circulator the higher wage to which his signature haul
entitled him, absent a violation of the employee conduct code. For example, when
asked if raises were automatic, Mr. Bilsten responded only with an example of
“people who were combative, who were rude” and whom he therefore “wasn’t going
to promote.” 7/28/20 PM Tr. at 54–55. Mr. Chavez gave similar examples of
circulators who presented themselves poorly or were impolite. 7/29/20 AM Tr. at
67, 70–77. But all of these examples represent violations of the conduct code, which
is the other basis for raises listed in the December pay schedule. Ex. 57 at Exhibit
A. The later schedules, however, made no reference to the code of conduct. And
neither witness identified anything other than the code of conduct that would confer
discretion; Mr. Bilsten acknowledged that he could not identify a document or policy
that made the pay schedules discretionary. 7/28/20 PM Tr. at 15–18.
Whatever considerations factored into determining whether a circulator
complied with Petition Partners’ code of conduct (for the December scale), they do
not change the fact that compensation was always based on the number of signatures
collected—even under the December scale. When asked whether, in addition to
circulators’ conduct, he “also considered the productivity of a circulator,” Mr.
Bilsten responded, “Absolutely. We are in the signature gathering business.”
7/28/20 PM Tr. at 54. And in response to a clarifying question asking whether
Petition Partners considered the signatures collected in one week when setting
compensation for the next week, he responded “Yes.” Id. The mere fact that
compensation was based on at least one other factor (the conduct code) does not
19

 obviate the fact that it was also “based on the number of signatures collected.” The
superior court’s legal misstep was assuming that an action could be “based on” only
one factor.
Further, nothing in Section 19-118.01(A) creates a loophole for “prospective”
payments based on the number of signatures collected the week before. And for
good reason. Allowing employers to avoid payment rules by simply making the
payment prospective would render the rules meaningless.

As if the weekly

adjustment in this case did not create sufficient incentive to collect more signatures,
an employer could set a new wage every morning—or every hour—based on the
number of signatures collected previously. The statute creates no such opening.
Rather than confining themselves to the text of the statute, Defendant finds its
“prospective payment” exception in an Oregon administrative ruling, which the
Ninth Circuit noted in Prete v. Bradbury, 438 F.3d 949, 952 n.1 (9th Cir. 2006).
Oregon

Administrative

Rule

165-014-0260

sanctions

“adjusting

salaries

prospectively relative to a circulator’s productivity . . . provided no payments are
made on a per signature basis.” Not only is this rule foreign to Arizona, it does not
even appear in the statute in Oregon. In fact, it is plainly unfaithful to the text of the
Oregon law, but that issue—like the “prospective payment” concept generally—is
of no moment for resolving this case under Arizona law.
None of this is to say that circulator contracts cannot reward good behavior
and hard work; the statute simply precludes one metric—the number of signatures
collected. Initiative sponsors and circulator companies are free to reward circulators
who work longer hours, work in a less desirable area, or who obtain a higher valid20

 signature rate. Unlike payment “based on the number of signatures collected,”
A.R.S. § 19-118.01(A) (emphasis added), rewarding validity rate eliminates the
incentive for fraud. A circulator who ensures that each signature of five is lawful
(100% validity rate) would earn more than a circulator who rushes to obtain twenty
signatures of which only five are valid (25% validity rate). This example illustrates
the immateriality of how many signatures each circulator obtained because the
person with fewer overall signatures—and an identical number of valid signatures—
receives higher compensation. No raw number of additional signatures can cause an
increase in pay. This model also aligns the interests of circulators with those of
officials like the Secretary of State who must later test a sample of signatures for
validity.
Employers can also use raw numbers for other purposes, including providing
instruction or investigating work habits. While a strict minimum quota for keeping
a job—a “thing of value”—would violate the statute, supervisory programs likely
do not. For example, a circulator returning low numbers could be shadowed or
supervised by another circulator. 7/28/20 AM Tr. at 90–91. If they were in fact
skipping work, taking long breaks, or ineffective for other reasons, then a resulting
termination would not be based on the number of signatures collected but on the
failure to follow company policy. See 7/28/20 AM Tr. at 89 (circulators failed to
show up for work and discontinued collection), 90 (termination for intoxication); id.
(termination for fraud—lying about their reporting logs). All of these options
demonstrate that Defendant’s policy arguments alleging that Section 19-118.01
forces petition companies to pay circulators who in fact do no work are misplaced.
21

 See 7/28/20 PM Tr. at 82–83 (noting that circulators who did not work 40 hours,
when they claimed to, “were breaking the code of conduct. They were lying to us”).
Innovative circulator companies can also develop a range of compensation
programs to give their employees the best incentives while still complying with
Section 19-118.01. These could include referral programs, overtime pay, and
bonuses for working on the weekend. The one thing they may not do, however, is
pay “money or any other thing of value based on the number of signatures collected.”
A.R.S. § 19-118.01(A). The “Weekend Warrior” program provides a prime example
because it could have based compensation solely on weekend hours worked. But by
adding the requirement that circulators “[m]aintain at least 3 sets per hour to
qualify,” Petition Partners converted what otherwise would have been a lawful
payment program into an illegal one. The crucial question—does collecting some
number of signatures confer a thing of value?—is answered in the affirmative.
The record is clear that Petition Partners’ pay scales, just like its productivity
bonuses and other programs, were “based on the number of signatures collected.”
Indeed, despite Defendant’s best effort to characterize it differently, even Mr. Bilsten
acknowledged it was “a set [of signatures] model.” 7/28/20 PM Tr. at 72–73. This
Court should reach the same conclusion and reverse the superior count on the
specific issue of the Petition Partners pay scales.
C.

The “Spin the Wheel” Program Unlawfully Compensated
Circulators Based on the Number of Signatures Collected.

Petition Partners also instituted a “spin the wheel” promotion that was simply
a bonus program with variable bonus amounts. Participation, however, was based
22

 on the number of signatures collected. Ex. 10-019. While the spins introduced an
element of chance as to how much money a person would win, everyone who earned
the right to spin won some amount of money. See Ex. 66 (listing the possible result
as: $10, $20, $25, $50, $100, “Add an hour to your check,” and “Double your Spin”);
7/28/20 AM Tr. at 49 (circulator’s testimony that he won money each time, paid in
cash). Most importantly for Section 18-119.01(A), the program required minimum
signature collection, which appeared explicitly in the advertisement: 60 sets (20
hours x 3 sets) for one spin; 90 sets (30 hours x 3 sets) for two spins.
The “spin the wheel” program was directly “based on the number of signatures
collected.” Not only did it include a minimum number to participate, but it granted
an additional spin for circulators who turned in 90 signatures rather than 60. In fact,
it is analytically indistinguishable from the “Weekend Warrior” and “show me the
MONEY!” programs that the superior court concluded were illegal. Order at 12
¶ 20; Exs. 28 & 29. The “Weekend Warrior” program required that circulators
“[m]antain at least 3 sets per hour to qualify.” Ex. 29. And the “show me the
MONEY!” program provided one raffle ticket per 20 sets, and increased the number
of additional raffle tickets per 20 sets collected with additional tickets at 200
signatures (and then again at 2,000). Ex. 28. The same signature-dependence
infected the “spin the wheel” program. Yet the “spin the wheel” promotion was
even more widespread—Mr. Bilsten testified it was their most popular, 7/28/20 PM
Tr. at 20—making its legality, vel non, central to the resolution of this case.
Given the similarity to other offending programs, the superior court’s order
contains an inherent contradiction that can only be explained as one arising from
23

 confusion or the break-neck pace of election cases. The court concluded that Ex.
10-019 constituted an offending program, but that exhibit was the “spin the wheel”
program. The court’s conclusion that there “was no correlation [between] actual
number of signatures turned in and a circulator’s ability to ‘spin the wheel,’” Order
at 11 ¶ 18, must have arisen from a mistaken belief that Exs. 10-019 (with the full
text description) and 66 (showing just the wheel without text or a minimum
requirement) represented different programs. In reality, Ex. 66 was simply a blowup of the wheel to which Ex. 10-019 applied.
Just like the “Weekend Warrior” and “show me the MONEY!” programs, the
“spin the wheel” program was “based on the number of signatures collected.”
II.

Section 19-118.01(A) Disqualifies All “[s]ignatures that are obtained by a
paid circulator who violates this section.”
Section 19-118.01(A) provides a remedy for violations of its terms. To

discourage infractions and eliminate any fraudulent signatures, the statute
disqualifies “[s]ignatures that are obtained by a paid circulator who violates this
section.” A.R.S. § 19-118.01(A). It is not limited to a subset of those signatures,
and it is not confined to the specific timeframe in which the circulator profited from
the unlawful payment scheme. The statutory remedy, which reflects a policy
judgment about deterrence, attaches to the circulator and disqualifies whatever
signatures he collected. Instead of applying the statute as written, the superior court
crafted a variation on the “fruit of the poisonous tree” doctrine from Fourth
Amendment jurisprudence, which no party advocated and which has no basis in
election-law precedent. Order at 13 ¶ 25 & n.13. That improvisation was based on
24

 a perceived lack of “guidance about the actual standard to be used,” id., which this
Court should now provide.
The superior court began its analysis by noting that “Plaintiffs have overcome
the presumption of validity.” Order at 13 ¶ 25. But the court then imported a time
limit on which signatures to disqualify, reasoning that “the taint of the improper
payment is purged” after a week. Id. In a lengthy footnote, the court explained that
it devised the limiting principle because the statute did not expressly state that it
applies to “‘all’ signatures.” Id. n.13. But in the absence of a statutory basis for
confining Section 19-118.01(A) to a subset of signatures obtained by improperly
compensated circulators, the natural reading of the language is that all such
signatures are disqualified. See Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 93 (2012) (stating the court should not elaborate
unprovided-for exceptions to a text). Had the Legislature included language to
indicate that it intended not to count only “tainted” signatures, then the superior
court’s effort to devise a standard for drawing lines would be commendable. But
the Legislature included no such limitation.2 As a result, the inquiry is whether a
given signature was “obtained by a paid circulator who violates this section.” A.R.S.
§ 19-118.01(A). If it was, then the second half of the provision applies, and the

The superior court stated that “[t]he Legislature enacted A.R.S. § 19-118.01(A) to
invalidate only the signatures of a ‘paid circulator’ and not all signatures of the
person paying the circulator.” Order at 12–13 ¶ 22. Plaintiffs agree. If Petition
Partners improperly paid only one circulator, Plaintiffs agree that not all signatures
collected by Petition Partners would be disqualified. But all signatures collected by
that circulator would be disqualified. This result aligns with the statute’s plain text.
2

25

 signature is “void and shall not be counted in determining the legal sufficiency of
the petition.” Id.
Calibrating remedies to achieve a desired level of deterrence is a policy
judgment to be made by the Legislature. If it seems severe not to count all signatures
obtained by an improperly paid circulator, then that is a matter for legislative
correction. This Court should confirm that the unambiguous text of the statute
neither requires nor allows augmentation by the judiciary.
III.

Alternatively, the Superior Court Should Have Entered a Temporary
Injunction to Allow Discovery of How Many Circulators Were Paid
Unlawfully.
The superior court noted that Plaintiffs bore the burden to prove which

signatures were invalid. Order at 13 ¶ 23 (citing Kromko v. Superior Court, 168
Ariz. 51, 58 (1991)). And it concluded that while Plaintiffs raised a persuasive
policy argument regarding the need for a temporary injunction pending discovery,
they had not demonstrated a strong likelihood of success on the merits because the
number of signatures that would be invalidated was insufficient to bar the Initiative
from the ballot. Id. at 16–17 ¶¶ 30–33. But Plaintiffs’ likelihood of success on the
merits is tied to Defendant’s failure to maintain sufficient records. After Plaintiffs
successfully proved that payment plans were illegal, Defendants, not Plaintiffs,
should bear the burden of proving that the circulators who were improperly paid
collected too few ballots to enjoin the Initiative. See Parker v. City of Tucson, 233
Ariz. 422, 432 ¶ 24 n.9 (App. 2013) (“[A] party with superior knowledge about and
access to evidence regarding certain facts should bear the burden of producing that

26

 evidence, rather than charging the adverse party with the task of proving a
negative.”).
The superior court recognized the incomplete nature of the evidence. Order
at 14–16 ¶¶ 27–29. The best that Defendant produced was a general payroll showing
that 146 circulators received a bonus the court concluded was improper—with no
record as to how many signatures they collected and despite the fact Defendant
acknowledged several of its bonus payments were made in cash. Indeed, the lack of
proper record-keeping was a theme during trial. 7/28/20 PM Tr. at 113–14 (noting
Petition Partners destroyed or failed to keep records of cover sheets identifying how
many signatures were collected by each circulator); 7/29/20 AM Tr. at 20–21 (noting
there were no real records identifying who spun the wheel); 7/29/20 PM Tr. at 38
(stating Plaintiffs would have to check each signature sheet located at the Secretary
of State’s office). A temporary injunction is necessary to determine how many
signatures would be disqualified under any combination of unlawful payment
practices.
Further, the court’s back-of-the-envelope calculations that allegedly
established a low probability of success on the merits, were overly conservative. For
example, though the court found the “show me the MONEY!” program illegal, Order
at 12 ¶ 20, it based its “success on the merits” calculus on only those circulators for
whom Defendant provided a paystub showing a bonus was paid. The court did not
consider circulators who received raffle tickets—i.e., a “thing of value”—but who
did not win. Section 19-118.01(A) is not limited to monetary bonuses, but extends
to any “thing of value,” which includes raffle tickets. 7/29/20 AM Tr. at 15. Lottery
27

 tickets, for example, cost money because the chance to win is a thing of value. By
focusing only on bonuses that appeared in paystubs, the court also omitted
circulators who received non-monetary bonuses. So, too, those records failed to
show cash payouts—as most of the “spin the wheel” bonuses were.3
If this Court were not to conclude that the hourly baseline program was
invalid—which would invalidate over 350,000 signatures and moot the likelihood
of success issue—a temporary injunction is necessary for Defendant to produce
records sufficient for Plaintiffs to establish which circulators were improperly
compensated in violation of Section 19-118.01(A). To allow otherwise would
reward Defendant for failing to keep proper records—despite Plaintiffs having
already met their burden of defeating the presumption of legality.
CONCLUSION
This Court should reverse the superior court’s order regarding the Petition
Partners pay scales and “spin the wheel” bonuses. The Court should then exclude
signatures collected by paid circulators who violated Section 19-118.01(A). In the
event illegality is not established for one or more payment methods, the Court should
enter a temporary injunction enjoining the Initiative’s placement on the ballot
pending further discovery.

Because of the court’s inconsistent rulings regarding the “spin the wheel” program,
and because it focused only on payroll stubs, the court did not include in its
calculation the improper payments made according to Ex. 10-019. That omission,
by itself, justifies the temporary injunction even if no other programs are deemed
improper.
3

28

 Respectfully submitted this 7th day of August, 2020.
By /s/ Dominic E. Draye
Dominic E. Draye
GREENBERG TRAURIG, LLP
2375 East Camelback Road
Phoenix, AZ 85016
Telephone: 602.445.8000
drayed@gtlaw.com
Brett W. Johnson
Eric H. Spencer
Colin P. Ahler
SNELL & WILMER L.L.P.
One Arizona Center
400 E. Van Buren, Suite 1900
Phoenix, Arizona 85004
Attorneys for Plaintiffs/
Appellants/Cross-Appellees

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 CERTIFICATE OF COMPLIANCE
1.

This certificate of compliance concerns:
___X__

A brief, and is submitted under Rules 10 and 14(a)(5)

______

An accelerated brief, and is submitted under Rule 29(a)

______

A motion for reconsideration, or a response to a motion for
reconsideration, and is submitted under Rule 22(e)

______

A petition or cross-petition for review, a response to a petition or
cross-petition, or a combined response and cross-petition, and is
submitted under Rule 23(h)

______

An amicus curiae brief, and is submitted under Rule 16(b)(4)

2.
The undersigned certifies that the brief to which this certificate is attached
uses type of at least 14 points, is double-spaced, and contains 7,452 words.
3.
The document to which this Certificate is attached does not exceed the word
limit set by the Court.

/s/ Dominic E. Draye
Dominic E. Draye

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