Arizona Capitol Times: Judge Leery of Clean Elections Referendum

By Christian Palmer, Arizona Capitol Times

During oral arguments held today, Maricopa County Superior Court Judge Dean Fink strongly indicated that he is likely to remove SCR1025 from the ballot on grounds that it violates the single amendment requirement of the state Constitution.

The requirement prohibits ballot measures from asking voters to decide on two different issues at the same time. During court arguments, Fink said he had trouble accepting that SCR1025 would effectively force voters to drain government funding accounts for public campaign financing programs for the state and the city of Tucson.

Fink told referendum supporter Clint Bolick, a Goldwater Institute attorney who argued on behalf of a ballot committee formed by former state Sen. Jonathan Paton, that the measure would be far less likely to face single-amendment scrutiny “had this been limited to Clean Elections.”

The judge noted that the referendum, if passed by voters in 2012, would divert both the state’s and Tucson’s money designated at the time for supporting political campaigns into the state’s general fund.

But, Bolick and supporters argued that the referendum is a legal one-size-fits-all policy question that treats all public campaign finance options in the state equally – and that the city of Tucson would have plenty of time to direct its campaign funds for other uses.

Fink questioned whether state lawmakers even considered Tucson’s predicament when the referendum was passed earlier this year, a claim that Bolick used to counter concerns that voters were purposefully being asked to weigh the fate of Clean Elections on the condition that they doom public campaign financing in Tucson.

“If never considered, it would be hard to argue that this was log-rolled,” said Bolick, who also argued that other ballot measures, like those affecting gay marriage, have survived legal scrutiny even though the proposals had far greater impact on state and local laws.

Fink also had difficulty accepting the legal arguments of attorney James Ahlers, who spoke on behalf of a group of plaintiffs who favor public campaign financing, including Common Cause, the Arizona League of Women Voters and Mike Valder.

Ahlers claimed that the proposed constitutional amendment runs afoul of other constitutional provisions and case law that gives cities leeway to dictate their own election laws, and that the referendum would accomplish multiple legislative goals that would each need a separate referendum to pass legal muster.

After the hearing, Paton told reporters that he would again lobby the Legislature to pass a referendum aimed at crippling Clean Elections, Arizona’s public campaign finance system for statewide and legislative candidates, if Fink were to rule SCR1025 illegal.

“This is going to be on the ballot next year,” he said, adding that SCR1025 was challenged because supporters of public campaign financing were “terrified” that voters would elect to stop the system responsible for taxpayer money being used for candidate “junk mail and yard signs.”

In contrast, Valder, who helped campaign for the 1998 ballot initiative that created the Citizens Clean Elections Commission and public campaign financing, said he doubted that Paton and opponents of Clean Elections could gain the support of a majority of the Legislature for the second time.

Valder said he believed that voters are growing upset over the quid-pro-quo political system that is enabled by candidates’ reliance on private campaign contributions.

“I think the world looks different now,” he said. “People are very concerned about how money works in politics. People are becoming aware of how the one percent controls the elections.”

Fink did not indicate when he intended to rule on the challenge.