A judge refused Monday to order lawmakers to reword how they are describing a controversial ballot measure to voters.
Maricopa County Superior Court Judge Robert Oberbillig said he might have chosen different words to explain a proposal asking voters to scrap the First Things First program which uses tobacco tax revenues to fund programs for early childhood development. In fact, the judge might have used the words "First Things First" to tell voters what they are deciding rather than the more "sterile" but legally correct name for the program: the Arizona Early Childhood Development and Health Program.
"But I don't believe ... that's my role here," the judge said.
Oberbillig said the wording crafted by a committee of lawmakers is "sufficiently neutral, non-argumentative, accurate and impartial as to not be misleading." And that, he said, is all the law requires.
Nothing in the legal fight will keep Proposition 302 off the ballot. It was placed there by legislators as a method of balancing the state budget.
But attorney Paul Eckstein who represents the board that runs the program, said that wording is crucial and could affect the outcome of the November vote.
That's because what's billed as an "impartial analysis" is mailed to the home of every registered voters in the state. And he said this wording, adopted on a party-line vote with only Republicans in favor, is not fair.
A 2006 voter-approved measure imposes an extra tax of 80 cents a pack on cigarettes. The funds are supposed to go to providing early childhood education and health care as well as helping educate parents of young children about their needs.
That tax raised $135 million in the budget year that ended June 30.
Some lawmakers say the money could be better used elsewhere, pointing to cuts in health care and state-subsidized child care because of the deficit.
But the Arizona Constitution precludes them from altering anything enacted by voters. That leaves sending the question back to voters as the only option.
What's known as Proposition 302, if approved, would require the funds raised to be used for "health and human services for children," though the specifics would be up to lawmakers.
Eckstein argued that the Legislative Council, where Republican lawmakers hold sway, purposely structured the analysis to convince voters to approve scrapping the program and instead diverting the money elsewhere.
For example, he said most voters know the program by the name "First Things First." Without that information in the description, Eckstein said, they won't know what they're being asked to repeal.
He also said voters should be told that they approved the program in the first place. And he said that lawmakers, in explaining how the funds can be used, failed to point out that only 10 percent can go for administration.
Oberbillig, however, said none of those omissions make the description misleading.
Still, the judge said it was "a close call" about whether the description was misleading by leaving out such information. He specifically questioned Mike Braun, the staff director of the Legislative Council, about the decision not to refer to the program's common name.
"Why are you hiding the obvious?" Oberbillig queried.
Braun pointed out the analysis of the original 2006 measure never used the phrase "First Things First." And he called that name, rather than its full legal name, a "campaign slogan."
