McGREGOR, Vice Chief Justice.
¶ 1 In November 1998, the voters of Arizona adopted the Citizens Clean Elections Act (the Act), later codified as Arizona Revised Statutes (A.R.S.) §§ 16-940 to 16-961 (Supp.2003). In June 2004, a group known as No Taxpayer Money for Politicians filed initiative petition signature sheets seeking to qualify Proposition 106 for the 2004 general election ballot. The plaintiffs brought this action to enjoin the Secretary of State from
¶ 2 Whether an initiative violates the separate amendment rule presents a question of law, which we review de novo. See Hohokam Irrigation & Drainage Dist. v. Ariz. Pub. Serv. Co., 204 Ariz. 394, 397 ¶ 5, 64 P.3d 836, 839 (2003).
¶ 3 The Arizona Constitution includes two provisions often loosely referred to as adopting a "single subject rule." The first, Article 4, Part 2, Section 13, sets out the rule that applies uniquely to statutes enacted by the legislature.
Ariz. Const. art. 4, pt. 2, § 13.
¶ 4 The purpose of this single subject provision is to prevent surprise and the evils of surreptitious or hodgepodge legislation, including the practice known as logrolling. Taylor v. Frohmiller, 52 Ariz. 211, 215-16, 79 P.2d 961, 963 (1938). Although this provision does not require that the "title of the act should be a complete index to the legislation contained therein," id. at 216, 79 P.2d 961, the title of an act "should not be so meager as to mislead or tend to avert inquiry as to the context thereof...." Dennis v. Jordan, 71 Ariz. 430, 439, 229 P.2d 692, 697-98 (1951). To allow the legislature freedom to act, while enforcing the command of this provision, our interpretation of the single subject rule must be not "so narrowly technical on the one side so as to substitute the letter for the spirit, or so foolishly liberal on the other as to render the constitutional provision nugatory...." Taylor, 52 Ariz. at 217, 79 P.2d at 964. Under this provision, we construe legislation liberally in favor of its constitutionality. See White v. Kaibab Rd. Improvement Dist., 113 Ariz. 209, 212, 550 P.2d 80, 83 (1976).
¶ 5 The constitutional language also directs that "if any subject shall be embraced in an Act which shall not be expressed in the title, such Act shall be void only as to so much thereof as shall not be embraced in the title." Ariz. Const. art. 4, pt. 2, § 13. Thus, if one portion of a statute violates the single subject rule, "only that part which is objectionable will be eliminated and the balance left intact."
¶ 6 In contrast, the Arizona Constitution establishes a stricter test for determining whether a proposal involves more than one constitutional amendment. See Ariz. Const. art. 21, § 1 (Article 21). In language distinguishable from that used to describe the single-subject rule, the constitution provides:
Ariz. Const. art. 21, § 1.
¶ 7 The clear import of this provision is that voters must be allowed to express their separate opinion as to each proposed constitutional amendment. The separate amendment rule of Article 21 differs from the single-subject rule of Article 4 in two important respects. First, although statutes comply with the single-subject rule if they "embrace but one subject and matters properly connected therewith," Article 21 includes no reference to matters "connected with" a proposed constitutional amendment. Simply showing that several sections of a proposed amendment relate to the same general subject as that expressed in the title of the proposed amendment does not satisfy the requirements of Article 21. Instead, Article 21 requires that each proposed amendment "shall be" presented in a manner that allows the voters to consider and vote for or against each amendment separately.
¶ 8 Second, unlike the single-subject provision of Article 4, Article 21 does not permit the court to sever an offending provision from a multiple-proposal constitutional amendment. See Taxpayers Prot. Alliance v. Arizonans Against Unfair Tax Schemes, 199 Ariz. 180, 182 ¶ 7, 16 P.3d 207, 209 (2001) (holding that court has no authority to sever sections of a proposed amendment to the constitution). Instead, if a proposal includes more than one amendment, the entire proposal falls within the constitutional prohibition.
¶ 9 The distinctions between Article 4 and Article 21 reflect the unique position and importance of the Arizona Constitution in state governance. The constitution provides a statement of basic principles that inform and define the foundation of the state's laws. See Miller v. Heller, 68 Ariz. 352, 357, 206 P.2d 569, 573 (1949) ("The constitution of this state, second only to the constitution of the United States, is the supreme law of Arizona."); see also Cecil v. Gila County, 71 Ariz. 320, 322, 227 P.2d 217, 218 (1951) (stating that the Arizona Constitution is basic law); see also John D. Leshy, The Making of the Arizona Constitution, 20 Ariz. St. L.J. 1, 112 (Spring 1988) ("[O]ne thing about the intent of the framers of the Arizona Constitution is absolutely clear—they fully expected the document they crafted to be the primary charter of state government and the primary check on it."). If the principles set out in this fundamental document are to be changed by a vote of the people, the voters must receive the opportunity to express their opinion clearly as to each proposed change.
¶ 10 When a proposed amendment consists of multiple provisions, the proposal constitutes one amendment under the terms of the constitution only if its provisions "are sufficiently related to a common purpose or principle that the proposal can be said to constitute a consistent and workable whole on the general topic embraced, that, logically speaking, should stand or fall as a whole." Kerby v. Luhrs, 44 Ariz. 208, 221, 36 P.2d 549, 554 (1934) (emphasis added).
¶ 11 Under the "common purpose or principle test,"
¶ 12 To determine whether the provisions of a proposed amendment meet the common purpose or principle test, we consider objective factors such as
¶ 13 To measure Proposition 106 against the dictate of Article 21, we first describe briefly the Clean Elections Act, which Proposition 106 is intended to affect. The Act established the Citizens Clean Election Commission (the Commission). A.R.S. § 16-955. The Act assigns the Commission many duties related to the conduct of public elections, but three are paramount. First, the Commission administers the public funding provided under the Act for the campaigns of participating candidates. Id. § 16-951. Second, it administers a voter education program and provides for debates among candidates.
¶ 14 Under the Act, campaign funding for participating candidates, as well as funding for the Commission to carry out its various duties, comes not from the general fund, but rather from the Clean Elections Fund (the Fund), which receives monies from a variety of explicitly dedicated sources. Any taxpayer may contribute five dollars to the Fund by marking an optional check-off box on his or her Arizona income tax form. Taxpayers who do so receive an equal tax credit.
¶ 15 The Act also places limits on monies that the Commission may spend and defines the expenditures that the Commission must or may make. The Act caps the total amount the Commission may spend each year at five dollars for each state personal income tax return filed by an Arizona resident during the previous calendar year. Id.
¶ 16 At least once each year, the Commission must project the amount of money it will collect over the next four years. Id. § 16-954.D. Then, assuming it will spend the maximum amount allowed by section 16-949.A, the Commission designates any projected surplus as excess funds, which return to the state's general fund. Id. § 16-954.D.
¶ 17 We apply the common purpose or principle test of Korte and Kerby to the operative sections of Proposition 106. If we cannot conclude that the provisions should stand or fall together or that a voter supporting one would reasonably be expected to support the principle of the other, we are obliged to find that Proposition 106 violates the separate amendment rule of Article 21.
¶ 18 Section A of Proposition 106 states that "[n]o taxpayer money
¶ 19 Section C of Proposition 106 provides that "all money in [the Clean Elections Fund], on and after the effective date of this section, shall be deposited in the general fund of the state." This language dramatically changes the funding source for the Clean Elections Commission by sweeping funds dedicated by the voters to the Commission into the state's general fund. Under the Act as adopted in 1998, and subject only to its limitations, the Commission independently decides how to spend the monies in the Fund and how much to spend on particular activities. See ¶ 15, supra. By virtue of section C of Proposition 106, the Commission, rather than being funded from an established, dedicated source, will become dependent upon legislative appropriations from the general fund to support all Commission duties unrelated to public campaign financing. In short, section C strips the Commission of its independence from legislative appropriation and renders it subject to legislative control of its budgeting decisions.
¶ 20 No facial relationship exists between sections A and C, and the sections advance no common purpose or principle. The purpose of section C, unlike that of section A, cannot be to eliminate public funding of political campaigns: Section A accomplishes that purpose. Nor can the purpose of section C be simply to assure that dollars no longer used for public funding of political campaigns be returned to the general fund. Section 16-954.D of the Act as it presently exists already requires the periodic return of excess funds to the general fund and, in addition, the impact of section C is not limited to funds that previously might have been used for political campaigns. Rather, section C reverts the entirety of all monies deposited in the Fund to the general fund.
¶ 21 One purpose of section C must be to deprive the Commission of its authority to make independent budgeting decisions by changing the funding source for the Commission and, concomitantly, to increase the
¶ 22 The proponents of Proposition 106 argue that, whatever the language of section C, the effect of that section will be negligible. They point out that the Clean Elections Act mandates that the Commission devote ten percent of the amount derived under A.R.S. § 16-949.A to its duties of voter education. Id. § 16-949.C. Therefore, the proponents conclude, the legislature could not appropriate less than the mandated amount for the Commission's voter education activity. Even assuming arguendo that the proponents are correct, the fact remains that section C changes the funding source for the Commission's enforcement and administrative duties. Under the terms of the Act, the Commission may use "up to ten percent" of the amount defined by section 16-949.A for its administrative and enforcement duties. Id. § 16-949.B. As adopted by the voters, the Act gave the Commission discretion to decide how much to spend for administration and enforcement, subject only to the limitation that the amount could not exceed ten percent of the available monies.
¶ 23 Section C transfers that decision to the legislature, thereby divesting the Commission of its authority to make independent funding decisions. It thus represents an important change to the existing statutory scheme: Whereas the Commission now can itself decide how much to spend on enforcement of election laws, under Proposition 106 the Commission would be required to apply to the legislature for funds to fulfill its enforcement duties, even though the members of the legislature are always potential targets of such enforcement efforts. Arizona's voters surely could adopt such an approach. But because the proposition advanced by section C rests upon a principle quite different from that advanced by section A, Article 21 requires that the voters be afforded the opportunity to consider a constitutional amendment that presents only that decision, not an amendment that joins the separate question of whether Arizona should publicly fund political campaigns.
¶ 24 Section C of Proposition 106 furthers yet another purpose, also unrelated to the purpose and principle underlying section A. When the voters adopted the Clean Elections Act, they approved a surcharge on all criminal and civil fines and penalties and dedicated those funds to specific purposes defined in the Act.
¶ 25 We cannot conclude from any objective factor that voters favoring one proposition would likely favor the other. No common principle makes it likely that one who votes to abolish public financing of political campaigns also would vote to retain a surcharge that provided taxpayer money, as defined
¶ 26 The voters, of course, retain the right to continue the surcharge and to allow the funds previously dedicated to the Commission to be diverted to the general fund. If the voters are to be asked to approve the use of this surcharge to increase the general fund, however, they must be given the opportunity to express their opinion through a separate proposed amendment.
¶ 27 For the forgoing reasons, we affirm the judgment of the Superior Court.
CONCURRING: CHARLES E. JONES, Chief Justice, REBECCA WHITE BERCH, MICHAEL D. RYAN and ANDREW D. HURWITZ, Justices.
HURWITZ, Justice, concurring.
¶ 28 The opinion of the Court faithfully summarizes and correctly applies our precedents concerning the "separate amendment rule" in Article 21, Section 1 of the Arizona Constitution. The opinion is particularly useful in emphasizing the differences between this constitutional provision and the "single subject" rule applicable to legislation in Article 4, Part 2, Section 13. Op. ¶¶ 3-9.
¶ 29 While I join the Court's opinion, I have substantial doubts about the continued utility of the "common principle or purpose test" derived from Kerby v. Luhrs, 44 Ariz. 208, 36 P.2d 549 (1934), and its progeny. Because that test in part turns on a judicial determination of whether a voter supporting one part of a proposed amendment would "be expected to support the principle of the others," id. at 221, 36 P.2d at 554, it involves the Court in a prediction of voter preferences and behavior that is often somewhat subjective and that will subject most proposed multi-faceted constitutional amendments to attack.
¶ 30 It may well be that a different approach to the separate amendment rule would provide greater certainty in interpretation while still achieving the critical goal of Article 21, Section 1—making sure that when voters are asked to amend the Constitution, what is before them is a single amendment, not several distinct proposals lumped under one heading. For example, an approach that focused on such objective factors as whether one proposal logically follows from another and is necessary for the practical implementation of the first might well provide more predictable adjudication.
¶ 31 The parties to this case, however, did not argue that we should apply anything but the traditional Kerby test, and I am reluctant to consider altering our traditional approach in the absence of briefing and argument on the subject. For the reasons stated by the Court, Proposition 106 fails the Kerby test, and I therefore leave for another day whether that test should continue to govern our separate amendment jurisprudence.