Judge Rules 2 Measures Can Go Together On Arizona's November Ballot

By Howard Fischer, Capitol Media Services
Published: Tuesday, July 17, 2018 - 8:32am
Updated: Tuesday, July 17, 2018 - 9:30am

Arizonans will get a chance to vote in November on whether they want to alter the powers of the Citizens Clean Elections Commission.

In an extensive ruling Monday, Maricopa County Superior Court Judge Teresa Sanders acknowledged that the measure proposed by the Republican-controlled Legislature is crafted so that voters who want to preclude publicly-funded candidates from buying services from political parties will also have to vote to give the Governor's Regulatory Review Council veto power over new commission rules.

But Sanders said there's nothing illegal about putting voters in a position where they have to support both changes just to get the one they want — even if they don't like the other one.

Sanders said the Arizona Constitution does require that amendments to that document must be be presented to voters as separate proposals. But the judge noted that the two changes that lawmakers want voters to approve are statutory, not constitutional.

"If the framers of the Arizona Constitution had intended that statutory amendments, submitted by either initiative or referendum, be subjected to a separate amendment restriction, they could have done so,'' she wrote. "They did not.''

Attorney Danny Adelman, who represents Louis Hoffman and Amy Chan, two former members of the Citizens Clean Elections Commission, said he will ask the Arizona Supreme Court to intercede.

Time is of the essence, as counties will begin printing up the bottom half of ballots — the part with measures for voters to approve or reject — by the end of August. That means there needs to be a final ruling before then on whether the issue will go to voters.

On The Ballot

The proposal put on the ballot by lawmakers seeks to make two changes in the law which allows, but does not require, candidates for statewide and legislative office to get public dollars if they avoid special interest donations. Such funding comes, largely, from a surcharge on civil, criminal and traffic fines.

One provision would prohibit those candidates from purchasing services like advertising from political parties or outside groups that have their own independent ability to influence elections.

The commission does allow such spending, though with restrictions on its use and requirements for accounting. But Rep. Doug Coleman, R-Apache Junction, said it's not proper to funnel public dollars into those organizations.

The other provision is more sweeping. It would subject any rules enacted by the commission to a review — and potential veto — by the Governor's Regulatory Review Council. That council is made up of six appointees of Gov. Doug Ducey.

Adelman argued to Sanders that giving political appointees that veto power would undermine the independence of what is supposed to be a bipartisan commission.

The Ruling

In issuing her eight-page ruling, Sanders pointed out that she is not deciding on the merits of the ballot measure. "That is for the voters to decide,'' she wrote. What is within her authority, Sanders said, is whether placing the two issues on the ballot as a take-it-or-leave-it proposal violates the Arizona Constitution.

"The court finds that it does not,'' Sanders said.

Adelman said that the judge, in looking only at what can be on the ballot, is missing a key point. He noted the Arizona Constitution has a separate provision which says that "every act shall embrace but one subject and matters properly connected therewith.'' That section governs what the Legislature itself can do.

What that means, Adelman argued, is that the Legislature itself acted improperly in voting to put the measure — and its two parts — on the ballot in the first place. "When they passed this, it was a legislative act,'' he told Capitol Media Services.

"Every member of the Legislature had to vote on that,'' Adelman continued. "The single-subject rule protects them from having to cast an all-or-nothing vote on this.''

Sanders, however, pointed out that the Arizona Supreme Court has said that the single-subject rule does not apply when voters propose their own laws through the initiative process. She conceded that there is no actual court ruling on whether that exemption applies to measures referred to voters by the Legislature itself. But the judge said she believes they, too, do not have to comply with the single-subject rule.

Impartial Language

A separate case playing out in another Maricopa County courtroom concerns what voters will be told about the measure, assuming it remains on the ballot.

That issue is whether the Legislative Council, a committee of lawmakers dominated by Republicans, has complied with a legal requirement to craft an "impartial'' description of what the ballot measure would do if approved. That description will appear in pamphlets mailed to the homes of the 3.6 million registered voters.

The lawsuit, filed by the full Citizens Clean Elections Commission, contends the council failed to include relevant information when it approved a description of changes the Republican-controlled Legislature wants voters to approve in how the commission operates. And some of what the council did put in the description, he said, is flat wrong.

Tom Collins, the commission's executive director, said that means voters, who have to ratify the changes approved by lawmakers, are being given an inaccurate picture of what the measure would do.

No date has been set for that hearing.