The Unexpected Reason Arizona's Mask Mandate Ban May Be Unconstitutional

Days before the deadline for Arizona lawmakers to pass a budget, state Rep. Joseph Chaplik said he would refuse to vote for a GOP-negotiated spending plan unless he got something in return.

"I said I'm not signing onto the education budget if we don't have control of the masks," the Scottsdale Republican told conservative radio host Garret Lewis in June.

Chaplik was referring to mask mandates — requirements for students, staff and visitors at Arizona public schools to wear face coverings to mitigate the spread of the coronavirus. Republicans such as Chaplik were demanding the budget include a policy banning the state's public schools from issuing such mandates.

The controversial ban on mask mandates is now scheduled to take effect on Sept. 29 after Chaplik and other Republicans got their way.

But that's where attorney Roopali Desai says lawmakers got it wrong.

Nothing in common with the budget, lawyer says

In August, Desai filed a lawsuit on behalf of Arizona's teachers union, school business officials, civic groups and others arguing a handful of policies passed as part of the budget are unconstitutional. That includes rules for conducting elections, regulations for what teachers can and can't talk about in their classrooms, and the ban on local school leaders requiring students and staff to wear masks.

What all those policies have in common, Desai says, is they have nothing in common with the budget.

"There's not any budget provision relating to a prohibition on COVID-19 mitigation policies [such as mask requirements]," she says. "It's simply a substantive policy that was put in here because ... certain legislators insisted that it be in there if somebody wanted them to vote on a budget."

The city of Phoenix later filed a separate lawsuit making the same argument. City attorneys say a policy designed to undermine civilian oversight of the Phoenix Police Department is unconstitutional.

It's not the substance of the laws that are at issue, Desai says. It's the way Republican lawmakers approved them.

Chaplik and other Republicans leveraged their votes on the budget for something in return. It's a common tactic in many states, even in Congress, called horse-trading.

When legislators negotiate a budget, there are typically a dozen or so bills that detail the spending plan. One is known as the "feed bill" — it's a list of all the appropriations of state revenues. Other budget bills act as instruction manuals for the feed bill — they tell state agencies and local governments how to spend money in the budget.

When there's nothing connecting a policy in the budget bills to the state's spending plans, that's a violation of the Arizona Constitution, Desai says.

There's a constitutional rule that a bill can only tackle one thing, or one single subject, at a time. When it comes to the budget, Desai says the subject is supposed to be how to spend taxpayer dollars.

Most states have similar rules in their constitutions requiring bills to stick to one subject at a time, and some, like Arizona, extend those rules to the budget, according to the National Conference of State Legislatures.

Teachers and others fight back

Horse-trading may be a part of politics, but Republicans took it too far this year, according to Beth Lewis, a mother, teacher and executive director of Save Our Schools Arizona.

"At the end of the day, these lawmakers and the special interests that are driving these, you know, sort of pet projects or pet positions, were forced in to get other people to vote on the budget," she says. "And that's just not the way the legislative process should work."

Republican Senate President Karen Fann spoke publicly about the budget last month, blaming her party's dwindling numbers at the state Capitol for a budget packed with significant new policy.

Republicans, who've held legislative majorities in both chambers for nearly three decades, don't give Democrats a seat at the table when it comes to the budget. This year, the Republican majority was so slim that to pass a budget on party lines, all 31 Republicans in the House and all 16 in the Senate had to vote for it.

"Everyone knew that they were either No. 16, or No. 31, which created a challenge. ... We ended up having to put policy in the budget that not necessarily everybody was on board with. But to get that budget moving, that's what we had to do," Fann says. "That was not fun," she adds.

Lewis says lawmakers can, and should, do better.

"That's definitely politics," Lewis says. "But with the single-subject rule with budget bills, we should really be talking about appropriations, and I think this is what the courts are going to decide, right? Is it unconstitutional to push in all of this other legislation when lawmakers are supposed to be talking about how to fund our state budget?"

There are a number of laws at stake in the two complaints filed against Arizona. Those laws are scheduled to take effect on Sept. 29. In the separate lawsuits, Desai and attorneys for the city of Phoenix have asked the court to block the state from enforcing laws they shouldn't have passed as part of the budget.

A ruling in their favor could also send a message to Republicans that politics as usual, when it comes to budget negotiations, must change.

The budget, Desai says, should stick to the budget.

"It's in our Constitution," she says. "We've gone astray from that process; we need the courts to set those boundaries. And then hopefully, moving forward, if we're successful in this case, the Legislature won't engage in these kinds of shenanigans."

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