Smith v. Fontes: Cementing the “Exactly-15 %” Initiative Signature Standard and Barring Double-Counting of Invalid Signatures

Introduction

Smith v. Fontes, decided by the Arizona Supreme Court on 6 August 2025, arose from a high-profile battle over Proposition 140—the “Make Elections Fair Act,” an initiative that would have replaced Arizona’s partisan primaries with an open, non-partisan primary system. Although voters ultimately rejected the measure at the polls, its path onto the ballot generated extensive litigation. Two sets of challengers (collectively “Plaintiffs”) contended that the initiative violated Arizona’s separate-amendment rule, was misleadingly summarized, and—most importantly—lacked the constitutionally required number of valid signatures.

After a labyrinthine sequence of trial-court rulings, special-master reviews, and emergency appeals, the Supreme Court affirmed dismissal of the challenge but, crucially, held that A.R.S. § 19-121.04(A)—the statute prescribing how the Secretary of State calculates valid signatures—is unconstitutional as applied when it “double counts” certain invalid signatures and thereby raises the voter-approved 15 % signature threshold for constitutional initiatives. The Court’s holding establishes a new precedent: any statutory signature-verification method that effectively requires more than 15 % of qualified electors’ signatures violates the Arizona Constitution.

Summary of the Judgment

The Court confirmed that the Arizona Constitution fixes—at 15 % of the votes cast in the previous gubernatorial election—the number of signatures needed to place a constitutional initiative on the ballot.
A.R.S. § 19-121.04(A) requires the Secretary of State to (1) subtract invalid signatures identified in a 5 % random sample and (2) apply the resulting invalidity rate to the remaining pool—thereby subtracting some signatures twice.
In “close” cases, this double deduction forces proponents to gather more than the constitutional minimum. Because that happened here, the statute—as applied to Proposition 140—unconstitutionally infringed the people’s initiative power.
The Court therefore affirmed the trial court’s dismissal of the challenge (the initiative ultimately qualified for the ballot, albeit later failed at the polls) and expressly invited the Legislature to re-examine the statutory calculation formula.

Analysis

Precedents Cited and Their Influence

Stanwitz v. Reagan, 245 Ariz. 344 (2018) – Confirmed that statutory regulations on initiatives are permissible only if they do not “unreasonably hinder” the constitutional right. Provided the analytical framework the Court used.
Mussi v. Hobbs, 255 Ariz. 395 (2023) & City of Flagstaff v. Mangum, 164 Ariz. 395 (1990) – Earlier cases interpreting § 19-121.04(A) acknowledged the inevitability of “double counting,” but their constitutionality was never squarely challenged. Smith v. Fontes distinguishes but does not overturn those cases, limiting them to situations where the extra deduction is not outcome-determinative.
Turley v. Bolin, 27 Ariz. App. 345 (1976) – Struck down a statute that advanced initiative-filing deadlines beyond the constitutional floor. The Court relied on Turley’s logic that the Legislature cannot tighten constitutional initiative requirements.
Foundational interpretive decisions such as Fain Land & Cattle Co. v. Hassell, 163 Ariz. 587 (1990) (follow framers’ intent) and Direct Sellers Ass’n v. McBrayer, 109 Ariz. 3 (1972) (reasonable supplementation standard) shaped the Court’s methodology.

Legal Reasoning

Textualism & Historical Intent. • The Constitution states initiatives must be signed by “a number equal to fifteen per cent.” • Convention records show framers purposely replaced the phrase “not less than” with “equal to” to prevent later legislatures from increasing the threshold. • Therefore any statute that drives the requirement above exactly 15 % conflicts with this history and text.
Mathematical Effect. • The three-step calculation in § 19-121.04(A) is arithmetically sound for broad estimates but illogical for precise counts because it subtracts the same invalid signatures twice. • In Smith, the initiative missed the mark only because of the duplicate deduction. Without it, it had 384,182 valid signatures—above 15 %.
As-Applied Analysis. • The Court declined to declare the statute facially invalid; instead, it ruled unconstitutional only where the double counting changes the ultimate qualification outcome. • This narrower approach respects the doctrine of constitutional avoidance and leaves room for routine application where the double deduction is immaterial.
First-Amendment Overlay. • Because initiative circulation is protected political speech, artificially raising the barrier burdens First-Amendment rights, supplying an independent federal ground for invalidation.

Impact on Future Cases and Election Law

Immediate administrative change: The Secretary of State must cease double counting in any contest where doing so would defeat ballot access; otherwise, litigation risk is high.
Legislative response invited: The Court explicitly “defers to the legislature” to craft a new, constitutionally compliant formula—likely one using the random-sample validity rate without subtracting already-known invalids twice.
Strategic petitioning: Political committees will still aim for a cushion above 15 %, but the decision removes an unpredictable statutory handicap, especially important for grass-roots efforts with limited resources.
Litigation template: Smith sets a blueprint for future as-applied challenges wherever statutory mechanics inflate constitutional thresholds (signature, timing, or otherwise).
Precedential reach beyond Arizona: Other initiative states that rely on random-sample methodologies (e.g., California, Colorado) may look to Smith when evaluating the constitutionality of their own sampling statutes.

Complex Concepts Simplified

Double Counting of Invalid Signatures: The statute both (1) directly removes invalid signatures found in the sample and (2) extrapolates from that same sample to deduct an additional percentage from the statewide pool. If a signature is already subtracted in step 2, subtracting a percentage that includes it again in step 3 means it is counted twice.
Validity Rate vs. Invalidity Rate: If 8 % of the sampled signatures are invalid, the invalidity rate is 8 % and the validity rate is 92 %. Multiplying the remaining signatures by 92 % yields the estimated valid total without double subtraction.
As-Applied Constitutional Challenge: A claim that a statute is generally valid but unconstitutional in the particular circumstances at hand. The law stays on the books yet cannot be enforced in that scenario.
15 % Signature Threshold: Arizona requires signatures equal to 15 % of votes cast for governor in the last election to propose a constitutional amendment. For 2024, that number was 383,923.

Conclusion

Smith v. Fontes fortifies Arizona’s constitutional initiative power by forbidding any statutory mechanism—however technical—that inflates the framers’ carefully chosen 15 % signature requirement. The Court’s decision pivots on textual fidelity, historical evidence of intent, and practical mathematics, creating a clear rule: signature-verification procedures must leave the constitutional threshold untouched.

Beyond safeguarding Proposition 140’s ballot access (though voters later rejected it), the ruling recalibrates the relationship between statutory election administration and the constitutional initiative right. It stands as a warning that administrative convenience cannot eclipse constitutional guarantees, and it empowers voters and proponents with a firmer, more predictable pathway to direct democracy.