Impartial Use of Statutory Language in Ballot Analyses Established by Arizona Supreme Court

Introduction

In Arizona for Abortion Access v. Montenegro (No. CV-24-0167-AP/EL), the Arizona Supreme Court addressed the scope of the Legislative Council’s duty under A.R.S. § 19-124(C) to prepare an “impartial analysis” for the voter publicity pamphlet. Arizona for Abortion Access, a pro-abortion-rights political action committee (“Committee”), challenged the Council’s choice to quote the phrase “unborn human being” from the current abortion-regulating statute (A.R.S. § 36-2322) when summarizing existing law. The Committee argued that this term is partisan and psychologically loaded, and asked the Council to replace it with “fetus.” A Superior Court judge agreed and ordered the Council to remove the phrase, but the Supreme Court reversed, holding that an analysis that accurately quotes statutory language is not partisan if it fairly describes both existing law and the changes a proposed constitutional amendment would bring.

Summary of the Judgment

Justice King, writing for the majority (joined by Vice Chief Justice Lopez and Justices Brutinel and Pelander), reversed the Superior Court’s order. The Court held:

The Council’s analysis must be impartial, neutrally stating the measure’s text, its effects on existing law, and any necessary background.
In this case, the analysis began by quoting the existing statute’s exact phrase—“unborn human being”—and then described the Initiative’s own terms—“fetus” and “fetal viability.”
Because the Council accurately recited statutory language and clearly explained how the Initiative would amend the law, the analysis “substantially complies” with § 19-124(C)’s requirement to avoid advocacy, fallacy, or partisan coloring.
The Court emphasized that voters, not courts, decide which terminology they prefer, and it is the Council’s role to neutrally present both the current legal regime and the proposed change.

Chief Justice Timmer, joined by Justice Beene, dissented. The dissent argued the term “unborn human being” is inherently value-laden and should have been replaced with truly neutral wording, leaving contested moral and philosophical issues to the “for” and “against” arguments.

Analysis

Precedents Cited

Fairness & Accountability in Ins. Reform v. Greene (180 Ariz. 582, 1994): Established that the Legislative Council must prepare a neutral, impartial analysis subject to judicial review.
Arizona Legislative Council v. Howe (192 Ariz. 378, 1998): Clarified that analyses must avoid partisan coloring or persuasive rhetoric and must “substantially comply” with neutrality requirements.
Citizens for Growth Management v. Groscost (199 Ariz. 71, 2000): Held that embellishing existing law with adjectives like “extensive” or “expanded” crosses into advocacy.
Tobin v. Rea (231 Ariz. 189, 2013): Found that using emotionally charged phrases like “tax increase” without necessary context can mislead and breach impartiality.

Legal Reasoning

The majority’s reasoning unfolded in several steps:

Statutory Duty to Be Impartial: Under § 19-124(C), the Council must give a “clear and concise” summary, avoid technical terms “wherever possible,” and may provide “background information, including the effect of the measure on existing law.”
Accurate Quotation of Existing Law: The phrase “unborn human being” appears verbatim in A.R.S. § 36-2322 when describing the fifteen-week abortion limit. The Analysis quoted that statutory language exactly.
Faithful Presentation of the Initiative: The Initiative itself uses “fetus” and “fetal viability” to define the constitutional right. The Analysis accurately tracks the Initiative’s own terminology when describing proposed amendments.
No Partisan Coloring: By reproducing each term where it appears in law or in the Initiative, the Council refrained from adding value judgments or persuasive modifiers. This approach meets the “substantial compliance” test from Howe and Tobin.
Voter Autonomy: The Court stressed that voters may prefer one term over another for moral or political reasons, and it is their prerogative—rather than the Council’s or the Court’s—to choose which concept to endorse at the ballot box.

Impact

This decision clarifies how future ballot measure analyses should be drafted:

Councils may reproduce statutory or initiative text verbatim—even when the language touches on emotionally charged topics—so long as no extra advocacy or loaded modifiers are added.
Courts reviewing such analyses will ask whether the summary is a neutral presentation of existing law and the proposed change, not whether the language itself carries moral or emotional weight in isolation.
The ruling preserves the people’s power to decide policy questions, limiting judicial oversight to ensuring compliance with the legislative neutrality mandate.

Complex Concepts Simplified

“Impartial Analysis”: A neutral, fact-based summary of a measure’s text, its legal effects, and necessary background—no advocacy, no emotional persuasion.
“Substantial Compliance”: Courts ask whether reasonable minds could conclude the Council met the statute’s neutrality requirements, not whether the court itself would have used different wording.
“Technical Terms”: Specialized vocabulary (e.g., “myocardial infarction”). § 19-124(C) encourages avoiding them when everyday alternatives (“heart attack”) are available.
“Background Information”: Context about how a proposed measure would change current law—mandatory if it clarifies what voters are approving or rejecting.

Conclusion

Arizona for Abortion Access v. Montenegro anchors the principle that ballot-pamphlet analyses must neutrally present both existing statutes and proposed changes. By faithfully quoting statutory language (“unborn human being”) and then matching it against the Initiative’s terms (“fetus,” “fetal viability”), the Legislative Council fulfilled its duty under A.R.S. § 19-124(C). The decision safeguards voters’ ability to assess measures on their merits while preserving the Council’s administrative role and preventing advocacy or value judgments from creeping into official summaries.