IN THE

SUPREME COURT OF THE STATE OF ARIZONA

JAIME MOLERA, ET AL.,

Plaintiffs/Petitioners/Appellants,

v.

MICHELE REAGAN, IN HER CAPACITY AS THE SECRETARY OF STATE OF 

ARIZONA,

Defendant/Respondent/Appellee,

and

INVEST IN EDUCATION COMMITTEE, A POLITICAL ACTION COMMITTEE, 

Real Party in Interest/Appellee.

_____________________________

INVEST IN EDUCATION COMMITTEE, A POLITICAL ACTION COMMITTEE;

JOSHUA BUCKLEY, AN INDIVIDUAL, 

Cross-Plaintiffs/Appellees.

v. 

MICHELE REAGAN, IN HER CAPACITY AS THE SECRETARY OF STATE OF

ARIZONA,

Cross-Defendant/Appellant, 

and

J.D. MESNARD, IN HIS OFFICIAL CAPACITY AS THE SPEAKER OF THE ARIZONA

HOUSE OF REPRESENTATIVES; AND STEVEN B. YARBROUGH, IN HIS OFFICIAL

CAPACITY AS PRESIDENT OF THE ARIZONA SENATE,

Intervenors in the Cross-Claim/Appellants.

________________
MOLERA V. REAGAN

Opinion of the Court

2

No. CV-18-0218-AP/EL

Filed October 26, 2018

Appeal from the Superior Court in Maricopa County

The Honorable James D. Smith, Judge

No. CV2018-010209

REVERSED

COUNSEL:

Kory Langhofer, Thomas Basile, Stewart Salwin, Statecraft, PLLC, Phoenix, 

Attorneys for Jaime Molera, Jennifer Henricks, J.D. Mesnard and Steven B. 

Yarbrough

Kara Karlson, Assistant Attorney General, Joseph Eugene La Rue, Assistant 

Attorney General, Arizona Attorney General’s Office, Phoenix, Attorneys 

for Michele Reagan

Israel G. Torres, James E. Barton, II, Saman J. Golestan, Torres Law Group,

PLLC, Tempe, Attorneys for Invest in Education Committee

Timothy A. La Sota, Timothy A. La Sota, PLC, Phoenix, Attorneys for 

Amicus Curiae The Arizona Free Enterprise Club

Brett W. Johnson, Jennifer Hadley Catero, Colin P. Ahler, Andrew 

Sniegowski, Brianna Long, Lindsay Short, Snell & Wilmer L.L.P., Phoenix, 

Attorneys for Amicus Curiae State Representative Vince Leach

Roopali H. Desai, D. Andrew Gaona, Coopersmith Brockelman PLC, 

Phoenix; Daniel J. Adelman, Arizona Center for Law in the Public Interest, 

Phoenix, Attorneys for Amici Curiae Matthew G. Madonna; Sandra L. Bahr;

Animal Defense League of Arizona; Friends of ASBA, Inc.; Arizona 

Advocacy Network; and Planned Parenthood Advocates of Arizona
MOLERA V. REAGAN

Opinion of the Court

3

Timothy Sandefur, Scharf-Norton Center for Constitutional Litigation, the 

Goldwater Institute, Phoenix, Attorneys for Amicus Curiae Goldwater 

Institute

Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor 

General, Andrew G. Pappas, Assistant Solicitor General, Phoenix, 

Attorneys for Amicus Curiae State of Arizona

Robert G. Schaffer, Lewis Roca Rothgerber Christie LLP, Phoenix, 

Attorneys for Amici Curiae Greater Phoenix Chamber and Home Builders 

Association of Central Arizona

The Court issued a per curiam decision joined by VICE CHIEF JUSTICE

BRUTINEL and JUSTICES PELANDER, BOLICK, GOULD, and LOPEZ. 

CHIEF JUSTICE BALES, joined by JUSTICE TIMMER, authored a 

dissenting opinion. JUSTICE TIMMER authored a separate dissenting 

opinion.

PER CURIAM:

¶1 In this opinion, we explain the reasons for our prior order

disqualifying the Invest in Education Act initiative from the November 

2018 general election ballot. We greatly respect the initiative process, 

including the civic activism required to collect the signatures necessary to 

qualify a ballot measure, and we do not lightly disturb the fruits of such 

efforts. However, we must do so, as the Court has done in various prior 

circumstances, when essential requirements necessary to qualify a measure 

are not adequately followed. We hold here that the initiative’s proponents 

did not comply with the requirements of A.R.S. § 19-102(A) because their 

description of the initiative’s principal provisions omitted material 

provisions and created a significant danger of confusion or unfairness to 

those who signed petitions to place the measure on the ballot.
MOLERA V. REAGAN

Opinion of the Court

4

I.

¶2 On April 30, 2018, the Invest in Education Committee 

(“Committee”) filed with the Secretary of State a proposed initiative called 

the “Invest in Education Act,” which would increase K–12 education 

funding and raise certain income tax rates to support it. As required by 

§ 19-102(A), the Committee prepared a 100-word initiative description for 

placement on the petitions to qualify the measure for the ballot. The 

description provided:

The Invest in Education Act increases the classroom site fund

by raising the income tax rate by 3.46% on individual incomes 

over a quarter million dollars (or household incomes over half

a million dollars), and by 4.46% on individual incomes over 

half a million dollars (or household incomes over a million

dollars); designates 60% of new funds for teacher salaries and

40% for operations; adds full day kindergarten and pay raises

for student support services personnel as permitted fund uses; 

requires governing boards seek teacher and personnel input

on fund use plans; defines teacher and student support 

services personnel.

¶3 The petitions also contained the following language required 

by § 19-102(A): 

Notice: This is only a description of the proposed measure (or

constitutional amendment) prepared by the sponsor of the 

measure. It may not include every provision contained in the 

measure. Before signing, make sure the title and text of the 

measure are attached. You have the right to read or examine 

the title and text before signing.

¶4 On July 5, the Committee submitted approximately 270,000 

signatures to the Secretary of State in support of the initiative. Although 

the Secretary invalidated some petition sheets, she determined that the 

Committee filed a sufficient number of valid signatures to qualify the 

initiative for the ballot.
MOLERA V. REAGAN

Opinion of the Court

5

¶5 Petitioners Jaime Molera and Jennifer Henricks 

(“Petitioners”) filed a special action in Maricopa County Superior Court 

seeking to invalidate the initiative because (1) the 100-word initiative 

description was misleading in that it mischaracterized the size of the 

proposed tax increase and omitted a change in income tax indexing; and

(2) although § 19-102(D) requires a circulator to check a box on petition 

sheets to indicate whether he or she is paid, a third party pre-marked the 

boxes on most petition sheets. The Committee filed a cross-complaint 

challenging the constitutionality of A.R.S. § 19-102.01(A), which requires 

strict compliance with constitutional and statutory requirements for

statewide initiatives. The Committee also sought to restore some of the

petition sheets invalidated by the Secretary of State. 

¶6 The superior court ruled that § 19-102.01 is unconstitutional, 

that both the 100-word description and the pre-checked circulator boxes

satisfied statutory requirements, and that the Secretary of State erroneously 

excluded some petition sheets. The court thus concluded that the initiative 

was eligible for the ballot.

¶7 Pursuant to A.R.S. § 19-122(C), Petitioners filed an expedited 

appeal in this Court contesting all but the last of those rulings. Following 

our review, we issued an order determining that the 100-word initiative 

description created a significant danger of confusion or unfairness, thus 

invalidating the petition. As a result, we do not decide the other issues

raised in the appeal. We set forth the reasoning for our conclusion below. 

¶8 The only issue before us involves interpretation and 

application of constitutional and statutory provisions regarding initiatives, 

which we review de novo. See Pedersen v. Bennett, 230 Ariz. 556, 558 ¶ 6

(2012). We have jurisdiction over this matter pursuant to article 6, section 

5(3) of the Arizona Constitution. 
MOLERA V. REAGAN

Opinion of the Court

6

II.

¶9 The Arizona Constitution reserves to this state’s citizens the 

power to propose and enact laws by initiative. Ariz. Const. art. 4, pt. 1,

§ 1(1)–(2). Under our constitutional separation of powers, the courts must 

not intrude upon the people’s power to legislate, subject to constitutional 

and proper statutory requirements. See Kromko v. Superior Court, 168 Ariz. 

51, 57–58 (1991). This Court has observed that the citizens’ legislative 

authority “is as great as the power of the Legislature to legislate.” State ex 

rel. Bullard v. Osborn, 16 Ariz. 247, 250 (1914); accord Cave Creek Unified Sch.

Dist. v. Ducey, 233 Ariz. 1, 4 ¶ 8 (2013). Indeed, with the enactment through 

initiative of the Voter Protection Act, legislation enacted by the voters is 

even more consequential, such that the legislature cannot repeal an 

initiative-enacted law and may only modify it by a three-fourths vote when

the changes further the law’s purposes. See Ariz. Const. art. 4, pt. 1, 

§ 1(6)(C); see, e.g., State v. Maestas, 244 Ariz. 9, 13–14 ¶¶ 19–20 (2018)

(striking down legislation restricting the possession of marijuana on college 

campuses because it did not further the purposes of the Arizona Medical 

Marijuana Act); Cave Creek, 233 Ariz. at 4, 7–8 ¶¶ 9, 25 (concluding that 

legislative adjustments to voter-approved funding scheme for public 

education violated the Voter Protection Act).

¶10 Just as the legislature must comply with restrictions on its 

lawmaking powers, see, e.g., Ariz. Const. art. 4, pt. 2, § 19 (prohibiting the 

legislature from enacting local or special laws); Ariz. Const. art. 21, § 1

(requiring the legislature to refer constitutional amendments to voters 

separately), so too must the people comply with appropriate regulation of 

the initiative process. Article 4, part 1, section 1(14) of the Arizona 

Constitution provides that the initiative power “shall not be construed to 

deprive the legislature of the right to enact any measure except that the 

legislature shall not have the power to adopt any measure that supersedes” 

an enacted initiative. Further, article 7, section 12 directs the legislature to 

enact “registration and other laws to secure the purity of elections and 

guard against abuses of the elective franchise.” 
MOLERA V. REAGAN

Opinion of the Court

7

¶11 Thus, although our decisions safeguard the voters’ legislative 

power, this Court in many cases has invalidated citizen initiatives and 

referenda that did not comply with applicable requirements. See, e.g.,

Transp. Infrastructure Moving Ariz.’s Econ. v. Brewer, 219 Ariz. 207, 211–14 

¶¶ 17–36 (2008) (upholding dismissal of challenge to Secretary of State’s 

invalidation of ballot measure signatures as time-barred by statute); 

Taxpayers Prot. All. v. Arizonans Against Unfair Tax Schemes, 199 Ariz. 180, 

181–82 ¶¶ 1–8 (2001) (invalidating initiative for violation of constitutional 

single-subject rule); McDowell Mountain Ranch Land Coal. v. Vizcaino, 190 

Ariz. 1, 3–5 (1997) (disqualifying petition signatures gathered by 

referendum circulators who were not qualified electors); Perini Land & Dev. 

Co. v. Pima County, 170 Ariz. 380, 382–84 (1992) (holding referendum would 

not appear on ballot for failure to comply with signature requirement); W.

Devcor, Inc. v. City of Scottsdale, 168 Ariz. 426, 428–32 (1991) (determining 

referendum petitions were invalid because they did not contain required 

circulators’ statements); Saggio v. Connelly, 147 Ariz. 240, 241–42 (1985) 

(holding initiative invalid for failing to propose a law or ordinance); 

Cottonwood Dev. v. Foothills Area Coal. of Tucson, Inc., 134 Ariz. 46, 48–50

(1982) (invalidating referendum petitions that did not attach resolution); 

Direct Sellers Ass’n v. McBrayer, 109 Ariz. 3, 5–6 (1972) (holding referendum 

petitions invalid where amendments were not made within time limits);

Kerby v. Griffin, 48 Ariz. 434, 446–56 (1936) (holding that initiative failed to 

comply with publication requirement).

¶12 Challengers are also required to conform to statutory 

requirements. Two years ago, for example, in the context of an initiative 

that proposed raising the state’s minimum wage, the trial court found the 

measure lacked sufficient valid signatures to qualify for the ballot. We 

vacated the judgment, reasoning that the opponents failed to meet the 

statutory deadline to file the challenge, thus allowing the initiative to 

proceed. Hitzeman v. Reagan, No. CV-16-0204-AP/EL, slip op. at 1–2 (Ariz. 

Aug. 30, 2016) (decision order). We explain below how the proponents here 

failed to meet the statutory requirements to qualify this measure for the 

ballot.
MOLERA V. REAGAN

Opinion of the Court

8

III.

¶13 The statutory provision pertinent to our analysis is

§ 19-102(A), which requires an initiative’s sponsors to provide on the 

petition “a description of no more than one hundred words of the principal 

provisions of the proposed measure or constitutional amendment.” The 

description need not be impartial. See Save Our Vote, Opposing C-03-2012 v. 

Bennett, 231 Ariz. 145, 152 ¶ 28 (2013). Nor must the description detail every 

provision, as the statutorily required disclaimer acknowledges. 

§ 19-102(A). However, the description will require us to invalidate the 

petition if “it is fraudulent or creates a significant danger of confusion or 

unfairness.” Save Our Vote, 231 Ariz. at 152 ¶ 26 (citation omitted). 

¶14 Petitioners assert that the description of the proposed Invest 

in Education Act violates the applicable requirements in two ways. First, it 

fails to mention that the measure modifies the inflation indexing of income 

tax rates that was adopted in 2015, thus exposing most taxpayers to tax 

increases. Currently, tax brackets and rates are set by A.R.S. 

§ 43-1011(A)(5). The income dollar amounts for each tax bracket are 

indexed for inflation by § 43-1011(C). In other words, the tax brackets are 

adjusted by the rate of inflation so that as incomes rise, they are not subject 

to higher rates of taxation simply because of inflation. The proposed 

initiative replaces those brackets with new tax rates and brackets in 

§ 43-1011(A)(6), restoring the pre-indexed brackets for individual taxpayers 

making less than $250,000 and for married taxpayers filing jointly making 

less than $500,000, and adding new brackets for taxpayers earning more 

than $250,000. The proposed initiative makes subsection (A)(6) “[s]ubject 

to” subsection C, the indexing provision, but that provision applies only to 

the old tax brackets set forth in § 43-1011(A)(5). By restoring the old preindexing tax brackets, Petitioners argue, the initiative would reverse 

indexing back to 2015 and place taxpayers in higher tax brackets; and by 

failing to apply the indexing provision to the new tax brackets in 

§ 43-1011(A)(6), the initiative would repeal indexing going forward. This, 

they assert, would lead to higher taxes for most taxpayers, not just those 

earning more than $250,000 as stated in the initiative description.
MOLERA V. REAGAN

Opinion of the Court

9

¶15 Petitioners argue that the description’s omission is deceptive, 

or confusing at best, in that petition signers were led to believe that only 

very wealthy taxpayers’ rates would be increased. The Committee 

responds, and the Chief Justice’s dissent asserts, that the initiative does not 

affect indexing as the new proposed tax rates and brackets in § 43-

1011(A)(6) are “[s]ubject to” the indexing provision of § 43-1011(C). If the 

measure does change indexing, the Committee asserts, it does so 

inadvertently, not intentionally.

¶16 Second, Petitioners argue that the description of the funding 

source—“raising the income tax rate by 3.46% . . . and by 4.46%” on 

specified taxpayers—is misleading and confusing in that it suggests a 

modest tax increase. In reality, Petitioners assert, the measure would raise 

the applicable rates by seventy-six percent and ninety-eight percent,

respectively. The Committee responds that the description is accurate, and 

that any confusion could be alleviated by reading the initiative text, as the 

notice on the petition provides.

¶17 We address these two issues in turn.

A.

¶18 The dispute over income tax indexing did not arise in the first 

instance in this lawsuit. Rather, it arose in the context of an analysis by the 

Legislative Council, whose nonpartisan staff reviews proposed bills for 

legislators of both parties. Although the Legislative Council opinion is not 

binding, had the challengers here sought such an analysis, the question 

might never have become a judicial one and the measure might well be 

before the voters.

¶19 Apparently recognizing the hazards inherent in initiative

drafting, the legislature enacted A.R.S. § 19-111.01, which provides that 

upon filing an application for an initiative petition and a statement of 

organization, a political committee may submit a copy of the proposed text 

of the measure to the Legislative Council. Within thirty days, the

Legislative Council staff must review the measure, limiting its 

consideration (as relevant here) to “errors in the drafting of the measure” 
MOLERA V. REAGAN

Opinion of the Court

10

and “confusing, conflicting or inconsistent provisions within the measure.” 

§ 19-111.01(B). The initiative’s proponents may then “accept, modify or 

reject any recommendations made by the legislative council staff regarding 

the text of the measure solely in [their] discretion.” § 19-111.01(C). In other 

words, if the proponents had requested an analysis as soon as the 

application was filed, they would have received an analysis within thirty 

days, well in advance of the filing deadline, and they could either have 

modified the text or description or taken the risk of having it invalidated. 

But the Committee failed to seek the Legislative Council’s review.

¶20 The measure’s opponents, in contrast, did avail themselves of 

this process while petitions were circulating. On June 20, Legislative 

Council staff issued its analysis, noting that it is “similar to the review that 

our office would conduct for a legislator on any draft of proposed 

legislation in that it identifies potential issues.” The analysis noted multiple 

concerns, including the measure’s effect on income tax indexing. 

Specifically, it explained that the measure would create new income tax 

brackets in § 43-1011(A)(6) and that the paragraph is subject to § 43-1011(C).

However, the analysis concluded that the reference to subsection C is

“meaningless” because subsection C “require[s] inflation adjustments only 

to the tax brackets prescribed in A.R.S. section 43-1011, subsection A, 

paragraph 5.” Because subsection C “do[es] not apply to the new A.R.S. 

section 43-1011, subsection A, paragraph 6 . . . the prefatory language does 

nothing.” The analysis went on to observe that “[i]t might be that the 

drafters of the initiative intended that the dollar amounts in the new tax 

brackets be adjusted for inflation. The language of the initiative does not 

accomplish this purpose, however.”

¶21 The Legislative Council staff was not alone in this analysis. 

Pursuant to A.R.S. § 19-123(E), the Joint Legislative Budget Committee

(“JLBC”) staff is required to prepare a fiscal-impact summary for voterinitiated ballot measures. The JLBC concluded the initiative “reinstates the 

individual income tax brackets for incomes up to $250,000 in effect in 2014.” 

In its accompanying analysis, the JLBC staff explained that as a result,

“most taxpayers would have a small portion of their income taxed in a 

higher bracket, resulting in a small increase on most taxpayers.” By way of 

illustration, as a result of indexing, married taxpayers filing jointly and
MOLERA V. REAGAN

Opinion of the Court

11

earning $108,617 in 2019 would have the same tax rates as married

taxpayers filing jointly and earning $100,000 in 2014, according to the JLBC.

But because the initiative would restore the brackets to 2014 levels, such 

taxpayers would be subject to a higher tax rate on the amount earned above 

$100,000. Eliminating indexing would affect tax rates at all income levels. 

And because indexing would not apply at all to the new brackets in 

§ 43-1011(A)(6), the relatively modest initial tax impact would expand over 

time, resulting in a tax increase to most taxpayers. 

¶22 We agree with Petitioners and the Legislative Council that the 

initiative’s “subject to” language, even if intended to do so, does not 

preserve tax indexing. Section 43-1011(C) provides indexing “for each rate

bracket prescribed by subsection A, paragraph 5.” The proposed new

subsection (A)(6) establishes new tax brackets after 2018, supplanting the 

tax brackets in subsection (A)(5). In other words, the “subject to” language 

circles us back to a subsection that is no longer operational. Even were we 

to credit intent rather than text, the new subsection (A)(6) establishes tax 

brackets “for taxable years beginning from and after December 31, 2018.”

Those brackets, on their face, erase the effects of indexing since 2015. And 

because both the “subject to” and indexing provision relate only to the tax 

rates in subsection (A)(5), which would no longer be active, the result is that

the new tax brackets would not be indexed going forward.

¶23 That conclusion requires us to determine whether the 

indexing changes are “principal” provisions whose omission from the 

initiative description must disqualify the measure from the ballot. We 

conclude they are. 

¶24 Because the statute does not define “principal provisions,” we 

apply the term’s common meaning. In Sklar v. Town of Fountain Hills, the 

court of appeals disqualified a citizen referendum because, as here, the 

petition failed to adequately describe the measure’s principal provisions. 

220 Ariz. 449, 453–55 ¶¶ 12–22 (App. 2008). The court consulted 

dictionaries to determine the meaning of “principal” and found that the 

plain meaning includes “most important, consequential, or influential,”

“chief,” and “a matter or thing of primary importance.” Id. at 453 ¶ 13 

(internal quotation marks and citations omitted).
MOLERA V. REAGAN

Opinion of the Court

12

¶25 The change in indexing is a primary, consequential provision

because it imposes tax increases on most Arizona taxpayers rather than 

only the state’s wealthiest taxpayers, as the description clearly suggests. 

Indeed, identifying the source of new revenue was so significant to the 

initiative proponents that it is set forth in some detail in the opening part of 

the description. A description indicating that other people’s taxes will be 

raised, but not the taxes of most of those signing the petition, creates a 

significant risk of confusion or unfairness and could certainly materially 

impact whether a person would sign the petition. Thus, the failure to 

disclose the measure’s impact on tax indexing constitutes the omission of a 

principal provision that renders the initiative invalid.

¶26 The Chief Justice’s dissent observes that the Committee 

disputes this reading of the measure’s effects on income tax indexing,

contending that we should extend the “subject to” language to the new tax 

brackets in subsection (A)(6) to avoid those effects, and that the proper 

place to resolve this dispute is at the ballot box rather than the courtroom. 

See infra ¶ 43. Although we try to give effect to all of a statute’s words in 

order to resolve ambiguity, in this instance doing so would require us not 

merely to construe those words but to rewrite the proposed statute. That 

invitation must be rejected on separation-of-powers grounds. Just as we 

cannot rewrite statutes to smooth their rough edges, see, e.g., City of Phoenix 

v. Butler, 110 Ariz. 160, 162 (1973), so may we not rewrite proposed 

initiatives to arrest unintended consequences. We note that the measure’s 

drafters could have corrected the errors themselves had they availed 

themselves of the Legislative Council’s expertise. Their failure to do so does 

not empower us to do so now. Moreover, rewriting the proposed statute to 

preserve income tax indexing would necessarily substantially decrease the 

amount of revenue that the measure would generate. We cannot substitute 

our judgment on such a consequential matter for the plain words chosen by 

the measure’s drafters.

¶27 Relatedly, Justice Timmer asserts in dissent that § 19-102(A) 

only requires the petition description to describe “known” principal 

provisions and not unintended consequences, so that the measure should 

proceed to the ballot. See infra ¶ 51. We hold § 19-102(A) requires an 

objective standard for evaluating the description of the actual provisions 
MOLERA V. REAGAN

Opinion of the Court

13

rather than crediting the drafters’ subjective intent. Section 19-102(A) does 

not qualify “principal provisions” with either “known” or “intended.” The 

purpose of the petition description is to inform prospective signers of the 

measure’s principal provisions so they may determine whether to endorse 

it for the ballot. This Court has long held that the proper remedy for failure 

to satisfy statutory prerequisites is to enjoin the measure from appearing on 

the ballot. See, e.g., Kerby, 48 Ariz. at 445; cf. City & County of Honolulu v. 

State of Hawai’i, No. SCPW-18-0000733, slip op. at 1–2 (Haw. Oct. 19, 2018) 

(order) (removing education funding measure from the ballot because it did 

not satisfy statutory requirement that the language must be “clear [and] 

neither misleading nor deceptive”). Our failure to determine whether the 

description omits a principal provision before the measure appears on the 

ballot would reward sloppy or even deceptive drafting, and would render 

the statutory transparency requirement meaningless because it would 

allow a measure to proceed even if voters signing the petition were not 

made aware of principal provisions. 

¶28 Moreover, recourse here to the measure’s text to correct any 

uncertainty is unavailing because that text is the source of the problem. 

Because the omission of the principal provision violates § 19-102(A) and 

creates a substantial danger of confusion or unfairness, the proper remedy 

is removal from the ballot. See Sklar, 220 Ariz. at 455 ¶ 22. Indeed, were the 

measure to proceed and win voter approval, the legislature’s authority to 

restore income tax indexing, as the proponents insist they intended, would 

be greatly circumscribed by the Voter Protection Act, so that a substantive 

fix might well require a second initiative. All of that underscores the 

important purposes served by the statutory requirement to describe an 

initiative’s principal provisions in the petition.

B.

¶29 The petition’s description of the magnitude of the tax increase 

on wealthy taxpayers also “creates a significant danger of confusion.” Save 

Our Vote, 231 Ariz. at 152 ¶ 26. The petition description stated that the 

measure would increase taxes on wealthy Arizonans by 3.46% and 4.46%, 

which on its face seems modest. However, the affected tax rates would 

actually increase by seventy-six percent and ninety-eight percent,
MOLERA V. REAGAN

Opinion of the Court

14

respectively. This difference is so significant that it could materially affect 

whether a person would sign the petition, as it is one thing to increase 

someone’s taxes by between three and four percent and another to nearly 

double them. Indeed, as the JLBC observed, the changes would make 

Arizona’s top tax rates the fifth highest in the country.

¶30 Given the description’s required brevity, the initiative 

sponsors need not have described this change in great detail, but they may 

not describe it in a confusing way. Had they simply changed the wording, 

saying that the rates applicable to the two high-income categories would be 

increased by 3.46 and 4.46 percentage points, the description would have 

been much clearer. Indeed, the Chief Justice’s dissent acknowledges that 

this wording “could have resolved the ambiguity.” See infra ¶ 40. Instead, 

by choosing to describe the increase in percentage terms, the initiative 

proponents made it appear more likely that the magnitude of the increase 

was slight rather than substantial. Applying basic mathematics principles, 

“[i]f a quantity is increased by a percentage, then that percentage of the 

quantity is added to the original.” Vassilis C. Mavron & Timothy N. 

Phillips, Elements of Mathematics for Economics and Finance 11 (2007). Thus, 

increasing the prior rate “by 3.46 percent” would change it only from 4.54% 

to 4.7%, and “by 4.46 percent” from 4.54% to 4.74%—quite a difference from 

the actual new rates of eight percent and nine percent in the initiative.

¶31 At best, the two possible interpretations of the “by [x]

percent” language yield a significant danger of confusion. The Chief 

Justice’s dissent characterizes the wording as ambiguous rather than 

confusing. See infra ¶ 40. Ambiguity is the root of confusion. Where the 

description lends itself to two sharply divergent interpretations with very 

different and significant ramifications, the danger of confusion is 

sufficiently great that it undermines any assurance that the voters received 

adequate notice of what they were signing. 

¶32 The Chief Justice’s dissent further asserts that voters who 

were confused could read the actual language of the text to clear up the 

ambiguity. See infra ¶ 41. But the description itself must be adequate in its 

description of the principal provisions to avoid confusion. The obvious 

purpose of § 19-102(A) “is to ensure that the public has immediate and full 
MOLERA V. REAGAN

Opinion of the Court

15

disclosure” of the initiative’s principal provisions. Sklar, 220 Ariz. at 454 

¶ 17. The description need not encompass minor provisions and may be 

presented in a biased manner, but it may not create a substantial danger of 

confusion or unfairness. To hold that such a confusing description is 

permissible because the truth may be discovered in the many pages of the 

initiative, or that the proponents actually intended something different 

from what the words they chose to use indicate, is to eviscerate the 

description requirement and its important purposes of transparency, 

fairness, and disclosure.

IV.

¶33 The omission of the change in tax indexing paired with the 

confusing language about the magnitude of tax increases makes it clear that 

petition signers were not adequately informed about what they were 

signing, as the requisite description failed to provide adequate notice of the 

measure’s principal provisions as required by § 19-102(A).

¶34 Accordingly, we reverse the superior court’s decision. 
MOLERA V. REAGAN

CHIEF JUSTICE BALES, joined by JUSTICE TIMMER, Dissenting

16

BALES, C.J., joined by TIMMER, J., dissenting.

¶35 I agree with the majority that better drafting of the 100-word 

description and Proposition 207 itself could have avoided the issues 

addressed in today’s opinion. But we have never required perfection in 

drafting as a condition for the valid exercise of legislative authority, and 

doing so with initiatives would infringe upon the people’s constitutional 

right to enact laws independently of the legislature. Ariz. Const. art. 4, 

pt. 1, § 1(1). Because I do not believe that the 100-word description presents

a substantial danger of fraud, confusion, or unfairness sufficient to 

invalidate the initiative petitions, I respectfully dissent from my colleagues’ 

decision to strike Proposition 207 from the ballot.

¶36 The description for Proposition 207 states:

The Invest in Education Act increases the classroom site fund 

by raising the income tax rate by 3.46% on individual incomes 

over a quarter million dollars (or household incomes over half 

a million dollars), and by 4.46% on individual incomes over 

half a million dollars (or household incomes over a million 

dollars); designates 60% of new funds for teacher salaries and 

40% for operations; adds full day kindergarten and pay raises 

for student support services personnel as permitted fund 

uses; requires governing boards seek teacher and personnel 

input on fund use plans; defines teacher and student support 

services personnel.

¶37 As required by A.R.S. § 19-102, the description appeared on 

the petition signature sheets along with this disclaimer: 

Notice: This is only a description of the proposed measure (or 

constitutional amendment) prepared by the sponsor of the 

measure. It may not include every provision contained in the 

measure. Before signing, make sure the title and text of the 

measure are attached. You have the right to read or examine 

the title and text before signing.
MOLERA V. REAGAN

CHIEF JUSTICE BALES, joined by JUSTICE TIMMER, Dissenting

17

¶38 The majority accepts the challengers’ arguments that the 

description poses a danger of confusion or unfairness by its “description of 

the change in the tax rate combined with the omission of any discussion of 

changes in indexing for inflation.”

¶39 If passed, Proposition 207 would have increased the tax rate 

from 4.54% to 8.00% on individual incomes from $250,001 to $500,000 and 

from 4.54% to 9.00% for individual incomes over $500,000 (with 

corresponding increases for joint filers). Thus, two new tax brackets would 

have been created. The tax rates for amounts up to $250,000 would remain 

the same regardless of a person’s total income. The proposed new tax rates 

are “marginal tax rates” in that they only apply to amounts of income in 

excess of the first $250,000. 

¶40 The issue regarding the tax rate reflects that changes in 

percentage rates can refer to either absolute or relative changes. For 

example, if a percentage rate increases from 6% to 8%, the difference in 

absolute terms is 2%. The relative change, in contrast, is an increase of 33% 

(8% minus 6%, divided by 6%). In this respect, the 100-word description is 

not inaccurate but ambiguous. In terms of absolute change, the Proposition 

would – as the description stated – raise the tax rates by 3.46% (8/100 –

4.54/100 = 3.46/100 = 3.46%) and 4.46%. But in terms of relative change, as 

the majority correctly notes, the increase in the marginal rates would be 

approximately 76% (3.46/4.54) and 98% (4.46/4.54). To avoid ambiguity in 

describing changes in percentage rates, the commonly accepted convention 

is to use the term “percentage points” to refer to absolute changes. For 

example, here the 100-word description could have resolved the ambiguity 

by saying that Proposition 207 would raise the income tax rate by 3.46 

percentage points instead of “by 3.46%.” But this does not mean that the 

description, as worded, created a substantial danger of confusion or 

unfairness. See Save Our Vote, Opposing C-03-2012 v. Bennett, 231 Ariz. 145, 

152 ¶ 27 (2013).

¶41 In assessing the adequacy of a 100-word description, this 

Court considers not only the description itself, but also the fact that it is 

accompanied by a notice stating it is only a description prepared by the 

sponsor and alerting petition signers to their right to review the attached 
MOLERA V. REAGAN

CHIEF JUSTICE BALES, joined by JUSTICE TIMMER, Dissenting

18

initiative’s title and text before signing. See id.; Wihelm v. Brewer, 219 Ariz. 

45, 48–49 ¶¶ 13–15 (2008). The description clearly states that Proposition 

207 would increase the tax rates on individual incomes greater than 

$250,000 (or twice that amount for joint filers). If – as the majority supposes 

– a prospective signer was confused about the exact quantitative change, 

the accompanying text clearly reflects in section 3 that Proposition 207 

would add two new income tax brackets to A.R.S. § 43-1011 that would 

increase the marginal tax rates from 4.54% to 8% for individuals earning 

$250,001 to $500,000 and 9% for those earning more than $500,000 (or joint 

filers earning twice those amounts). Notably, even if the description had 

used the phrase “percentage points” instead of saying that the rates would 

be raised by 3.46% and 4.46%, a signer still would have had to refer to the 

text itself to identify the resulting tax rates. Although the majority is 

concerned that the description understated the proposed tax increases, the 

description also arguably overstated them by not explaining they were 

increases in only marginal rates rather than rates applicable to total income.

¶42 Nor is the 100-word description flawed for omitting any 

discussion of changes in the indexing of taxes for inflation. The 100-word 

description is not a complete description - it need only describe the 

principal provisions of a measure. A.R.S. § 19-102. See also Save Our Vote,

231 Ariz. at 152 ¶ 27. Because Proposition 207 does not purport to eliminate 

inflation indexing, it is not surprising that the description does not discuss 

this matter. Even if the Proposition were ambiguous in its possible effects 

on indexing, that would not provide grounds for striking the measure from 

the ballot, but instead would properly be a subject of debate between 

proponents and opponents in their seeking to persuade the voters. Cf. 

Winkle v. City of Tucson, 190 Ariz. 413, 418 (1997) (“...this court should not 

create an impediment to the exercise of one of our state government’s 

bedrock institutions...In a democracy, the process itself is often as valuable 

as the result.”). For example, had the measure appeared on the ballot, the 

Secretary of State’s Publicity Pamphlet for the 2018 Election would have 

included a fiscal impact summary prepared by the JLBC discussing the 

effects of eliminating indexing – an effect disputed by the proponents of 

Proposition 207. 
MOLERA V. REAGAN

CHIEF JUSTICE BALES, joined by JUSTICE TIMMER, Dissenting

19

¶43 The proponents of Proposition 207 disclaim any intent to 

affect inflation-based tax indexing. Rather than resolve the interpretative 

issue now (which, after all, concerns the effect of a proposed rather than 

enacted law), we should instead allow the voters to consider the competing 

arguments about inflationary indexing in deciding how to cast their votes. 

But if we must decide the issue, the proponents’ reading of Proposition 207 

is the one better supported by the measure’s text. Currently, A.R.S. § 43-

1011(A)(5) identifies five income tax brackets for taxable years beginning 

after December 1, 2006, “subject to subsections B and C” of § 43-1011. 

Subsections B and C in turn provide for the indexing of the brackets 

identified in subsection (A)(5). Proposition 207 would not repeal 

subsections (A)(5), (B), or (C). Instead, it would add a new (A)(6) for taxable 

years beginning after December 31, 2018 that restates the five (A)(5) 

brackets for incomes up to $250,000 and adds two new brackets for 

individual incomes exceeding $250,000 and $500,000 (or twice those 

amounts for joint filers). The new (A)(6), like (A)(5), is expressly subject to 

subsections (B) and (C) of § 43-1011 – the subsections that provide for 

inflation-based indexing. 

¶44 On its face, Proposition 207 would not repeal the indexing of 

the tax brackets for incomes of $250,000 or less. The measure leaves in place 

the existing brackets for those income levels and it expressly states that it is 

subject to the subsections providing for indexing. While subsections (B)

and (C) refer to indexing the brackets identified in (A)(5), those same 

brackets are echoed in proposed (A)(6). The only way to conclude that 

(A)(6) eliminates indexing is to assume that its reference to subsections (B)

and (C) is meaningless and that it implicitly repeals rather than coexists 

with (A)(5) for tax years after 2018. Our usual approach, however, is to 

interpret statutes to harmonize and give effect to all their provisions. See 

David C. v. Alexis S., 240 Ariz. 53, 55 ¶ 9 (2016). And even if Proposition 207 

would eliminate indexing for the new brackets for incomes over $250,000 

and $500,000, such a change could hardly be called a “principal provision” 

of the measure that needed to be described in the description. Cf. Save Our 

Vote, 231 Ariz. at 152 ¶ 27 (noting that A.R.S. § 19-102(A) “requires only a 

description of the principal provisions, not a complete description”).
MOLERA V. REAGAN

CHIEF JUSTICE BALES, joined by JUSTICE TIMMER, Dissenting

20

¶45 Finally, if the majority were correct that Proposition 207 

would eliminate tax indexing for all brackets, JLBC’s analysis shows that 

the change would result in only a “small increase” in taxes for most 

taxpayers. For instance, JLBC estimated that a married couple with a 

taxable income of $101,000 would pay approximately $34 more in income 

tax due to this change, and that tax filers with adjusted gross incomes 

ranging from $0 to $200,000 (nearly 90% of all tax filers) would on average 

pay only $12 more annually. None of the additional revenues from 

eliminating indexing on the lower tax brackets would be dedicated to the 

Classroom Site Fund by Proposition 207. That Proposition 207 conceivably 

could result in “small increases” in taxes going to the general fund hardly 

makes that prospect a “principal provision” of a ballot measure aimed at 

increasing school funding by raising the marginal tax rates for higher 

income earners.

¶46 At bottom, the majority concludes that Arizona’s voters 

should not be allowed to consider a legislative proposal supported by 

hundreds of thousands of petition-signers because the description used the 

% symbol instead of the words “percentage points” and the measure did 

not add “or 6” to A.R.S. § 43-1011(C). Even if one agrees with that analysis, 

it should give one pause that the conclusion only comes after untold hours 

of volunteer efforts over many months to place the measure on the ballot 

and then accelerated litigation in the trial court and this Court. The 

initiative provisions of the constitution are self-executing and do not 

require legislation to be effective. Ariz. Const. art. 4, pt. 1, § 1(1).

¶47 Our state could be well served, however, by legislation 

affording some pre-circulation review of ballot measures and their 

summaries and a resulting safe-harbor that could avoid measures being 

struck from the ballot only after their circulation and with substantial 

support by qualified electors. Cf. A.R.S. § 19-111.01 (allowing for nonbinding review and recommendations on ballot measures by legislative 

council). Although the majority notes that the proponents could, and the 

challengers did, seek review and comment by the legislative council 

regarding Proposition 207 under A.R.S. § 19-111.01, that review only came 

late in the process – about two weeks before the signature filing deadline -

and it has no binding effect in terms of a measure’s validity.
MOLERA V. REAGAN

CHIEF JUSTICE BALES, joined by JUSTICE TIMMER, Dissenting

21

¶48 Because I do not think that Proposition 207’s description is 

fatally flawed, and I would otherwise affirm the trial court’s judgment 

leaving the measure on the ballot, I respectfully dissent.
MOLERA V. REAGAN

JUSTICE TIMMER, Dissenting

22

TIMMER, J., dissenting:

¶49 I join fully in Chief Justice Bales’ dissenting opinion. I write 

separately to highlight a flaw in the majority’s view that the adequacy of 

the 100-word initiative description is properly assessed only after a court 

resolves any ambiguities in the initiative measure’s language.

¶50 In determining that the 100-word description omits a 

principal feature of the Invest in Education Act by failing to describe the 

elimination of income tax indexing, the majority first interprets ambiguous 

language in the proposed statute to conclude that income tax indexing is, 

in fact, eliminated. Our statutory scheme belies this approach. 

¶51 First, A.R.S. § 19-102(A) logically requires initiative 

proponents to describe known principal provisions of the proposed 

measure. It does not require proponents to forecast unintended adverse 

consequences that depend on a future interpretation of the measure’s 

language. Thus, in determining whether § 19-102(A) has been satisfied, the 

appropriate inquiry should be whether the proponents’ assessment of what 

constitutes principal provisions is objectively reasonable based on the 

measure’s language, even if that language is subject to differing 

interpretations. (Contrary to the majority’s assertion, this is not a subjective 

standard. See supra ¶ 27.)

¶52 Second, nothing in our statutes contemplates that the 

adequacy of the 100-word description turns on judicial interpretation of 

ambiguous language in the measure. Indeed, although proponents have 

the option of asking the legislative council to review a measure’s text for 

ambiguities, they are neither required to do so nor obligated to change the 

text or the initiative description if an ambiguity is identified. See A.R.S. 

§ 19-111.01. In short, just as the legislature may enact an ambiguous statute, 

so too may the voters. And tellingly, although the proponents may accept 

the council’s recommendations to improve the measure’s language, see § 19-

111.01(C), there is no corresponding statutory mechanism for amending the 

100-word description.
MOLERA V. REAGAN

JUSTICE TIMMER, Dissenting

23

¶53 The proponents here contend they did not intend to eliminate 

income tax indexing and therefore did not include this elimination in the 

100-word description. As Chief Justice Bales points out, the proponents’ 

claim is supported by a reasonable interpretation of the measure’s 

language. The majority should have ended its inquiry there and resisted 

the petitioners’ call to resolve the ambiguity in the measure’s language to 

decide whether the 100-word description is sufficient. Had it done so, and 

the measure otherwise qualified for the ballot, voters could have considered 

arguments about the measure’s impact on income tax indexing in deciding 

how to vote, as the legislature contemplated. See A.R.S. § 19-123(E) 

(requiring at least three public hearings on an initiative measure qualified 

for the ballot to “provide an opportunity for proponents, opponents and 

the general public to provide testimony and request information” and 

which “shall include a fiscal impact presentation on the measure by the joint 

legislative budget committee staff”).

¶54 For these reasons, and those set forth in Chief Justice Bales’ 

dissenting opinion, I would affirm the trial court’s judgment and allow the 

voters to decide whether to pass the Invest in Education Act.