Ducey controls future of ‘dark money’ elections

Gov. Doug Ducey could upend elections in two major Arizona cities by effectively doing nothing.

Story by Paulina Pineda, Arizona Capitol Times

Ducey has signed HB2153, legislation meant to undo an overwhelming March 13 Tempe vote that restricts “dark money” groups in city elections and a similar proposal many believe Phoenix voters will adopt in November.

But Ducey has yet to sign Tempe’s ballot measure, which would require independent expenditures over $1,000 to disclose their funding sources and which 91 percent of Tempe voters approved.

Tempe’s ballot initiative has been sitting on Ducey’s desk for several weeks awaiting his signature.

Tempe Councilwoman Lauren Kuby said before the ballot measure goes into effect, the governor must sign off on it, but it’s mostly a formality. His veto power does not extend to voter-approved initiatives.

However, there’s nothing stopping him from sitting on the measure until after the law goes into effect on August 3, or longer. And at that point, he could conceivably refuse to sign it because it conflicts with HB2153, an unprecedented move that would disavow the will of the voters, Kuby said.

Joel Edman, executive director of the Arizona Advocacy Network, said he doesn’t remember a governor ever refusing to sign an initiative. But he added that it took Ducey 14 months to sign a measure Tempe voters approved in 2016 that would reduce the amount an individual could give to a campaign. Opponents of that measure argued it conflicted with state law on campaign spending limitations.

“It’s not clear if that delay was just an oversight or if they were trying to find a legal reason to object it,” he said. “What’s interesting is that the Constitution does say that charter amendments have to be consistent with state law. But the area where charter cities have the clearest authorities to regulate and make their own local rules is in elections.”

Kuby said if Ducey refuses to sign the dark money measure, Tempe will probably challenge his decision. But she’s hopeful the city won’t have to resort to that.

“It’s rare that voters will come out 91 percent in favor of an issue. That shows that there is bipartisan support for this and for the governor to go against the people is something, especially in an election year, he likely doesn’t want to do,” she said.

Ducey spokesman Daniel Scarpinato said it’s too early to tell what the governor’s ultimate decision will be, adding that the governor will want to review the issue in detail and comb through the language of the voter-approved measure and HB2153 before making a decision.

However, even if Ducey does approve Tempe’s ballot measure, and later approves Phoenix’s, the two cities will likely still see themselves embroiled in a lawsuit.

But Edman said the question of whether the Legislature or cities have a final say in election matters could surface in a number of ways.

HB2153 would prohibit municipalities and counties from requiring that nonprofits in good standing with the Internal Revenue Service register as political action committees. It would also preclude nonprofits making independent expenditures in local elections from having to identify their funding sources.

Kuby said HB2153 should not apply to charter cities, like Tempe and Phoenix, because the Arizona Constitution gives the state’s 19 charter cities the power to regulate local elections, which the Arizona Supreme Court has ruled is a matter of strictly local concern.

Kuby said the city is ready to fight HB2153 in court.

“Democracy ain’t cheap and we will fight for the rights of our voters,” Kuby said. “I know that Phoenix will be right alongside us.”

Phoenix City Councilwoman Kate Gallego said the council’s decision to send the measure to the ballot was made knowing full well that if the Phoenix ballot measure is approved and Ducey signs it, it will conflict with state law. She said the city will also take the matter to court.

“That’s where we will continue the debate,” she said.

But Edman said a lawmaker could lodge a complaint under SB1487, which allows any state legislator to ask the Attorney General’s Office to investigate an ordinance enacted by a city to determine whether it complies with state law. The city has 30 days to come into compliance or risk losing state-shared revenue if the AG finds the ordinance violates state law.

And dark money groups that the cities are trying to enforce their laws against could also raise the question in court, he said.

“One way or another, I think the cities will win. It would be a real about face for the court to say that cities have a say in election matters, except in this instance,” Edman said.