The effort to put a Clean Elections repeal on the ballot overshadowed two other legislative referendums this year, and it promises to be the most contentiously fought of the measures in the upcoming 2012 election.
A campaign committee in favor of repealing Clean Elections has already formed and a legal challenge has been filed that will pit the Arizona Advocacy Network, which is in favor of keeping the public elections financing system, against the Goldwater Institute.
Neither side is mincing words.
“We’re going to win this case and this is going to be on the ballot of 2012,” said Jonathan Paton, chairman of No Taxpayer Money for Politicians, which will be a defendant in the suit. “That’s a promise.”
Linda Brown, executive director of the Arizona Advocacy Center, which is the plaintiff, said polling has shown overwhelming support for Clean Elections, but she believes the courts will remove the measure from the ballot.
“We really believe this measure is unconstitutional,” Brown said.
The other ballot proposals that passed this year include a modification of judicial merit selection — the result of lengthy negotiations between the courts and conservative lawmakers — and one that gives immunity to victims who injure their assailants, a proposal that landed on the ballot with little fanfare.
SCR1025, the proposal to repeal Clean Elections, would amend the state’s Constitution to outlaw public money for political campaigns, effectively gutting the public campaign financing system. It also directs all money generated for Clean Elections to the state’s general fund.
The Arizona Advocacy Network and a host of Democratic politicians wasted no time challenging the referendum by filing suit May 6 in Maricopa County Superior Court.
They had to hasten their challenge because of SB1167, which was passed with an emergency clause and requires that any legal challenges be filed within 20 days during non-election years and 10 days during election years.
Brown said the passage of SB1167 was meant to stop a lawsuit challenging SCR1025, the ballot measure aimed at repealing Clean Elections.
The suit alleges that the referendum is unconstitutional because it seeks to make two distinct constitutional amendments in a single ballot measure.
Attorney Paul Eckstein, who represents Arizona Advocacy Network, wrote in the lawsuit that the measure violates the single-subject rule because it sweeps money from the matching funds program of Tucson’s public campaign finance system into the state’s general fund. Tucson is the only city in the state that has a public campaign finance system.
Taking Tucson’s money should be presented as a separate question from repealing Clean Elections, Eckstein wrote.
The measure also fails to define the terms “campaign,” “campaigns,” and “provide campaign support for candidates,” which, if left ambiguous, could be interpreted to mean defunding the Citizens Clean Elections Commission’s administrative and voter-education functions, which are unrelated to campaign funding, Eckstein wrote.
He also asserts that defunding the commission’s administrative and voter-education functions makes the new measure no different from a 2004 initiative, which a Maricopa County Superior Court judge found violated the single-subject rule. The Arizona Supreme Court upheld the lower-court ruling.
Clint Bolick, the lead attorney for the Goldwater Institute, who represents Paton’s group, said the main difference between the 2004 initiative and the new measure is the previous effort sought a complete repeal of Clean Elections.
“This is simply a repeal of the public funding,” Bolick said.
Clean Elections has survived many slings and arrows since it was approved by voters in 1998.
Brown said Clean Elections proponents were able to repeatedly beat back similar measures, but this year, that support eroded at the last minute.
Paton, a former legislator, said there had been a lack of will to get a Clean Elections measure to the ballot in past Legislatures and he is taking some of the blame for it.
“Looking back on it, if I had focused on it earlier and put as much effort into it as I have this last year, I think we probably could have gotten on the ballot sooner,” he said.
Unanimous support expected
for merit selection measure
While the Clean Elections ballot proposal was contentious and dynamic, the passage of SCR1001 signaled the end of a lengthy battle against merit selection.
Peter Dunn, a lobbyist for the Arizona Judges Association, said negotiations to develop the measure were tough and involved the leaders of the two legislative chambers, the Center for Arizona Policy, the Arizona Judicial Council, judges and the State Bar of Arizona, but in the end everybody compromised.
Just about everyone with a stake in merit selection was involved in the negotiations, so there might not be anyone left to oppose the measure when it reaches the ballot.
“I’m sure there will be individual judges who will be unhappy with this, but I haven’t really heard from them yet,” Dunn said.
The ballot measure aims to give the governor more choices in appointing judges by increasing the pool of applicants she can choose from and scrapping an existing requirement that no more than two-thirds of the nominees hail from a single political party. It also diminishes the influence of the State Bar of Arizona in appointing members to the state’s three judicial screening commissions, which ultimately forward the names of selected applicants to the governor.
Dunn said one of the terms of the agreement was that all those involved in the negotiations would publicly support the measure, but so far there hasn’t been any organized effort.
“These generally don’t get passed unless there is some organized effort, but everybody is still catching their breath from the session,” Dunn said.
Cathi Herrod, president of Center for Arizona Policy, said developing a message for voters will be difficult because merit selection is complex and the measure has several components.
“We realize that ballot measures that have strong consensus among the proponents still can fail at the ballot and so we’re not going to ignore the need to make sure that voters understand that this is a worthwhile improvement to how Arizona selects judges,” she said.
SCR1020 would ban perpetrators from suing their victims
This session’s third referendum, SCR1020, will ask voters to ban perpetrators from suing their victims. The measure cleared the Legislature on party-line votes and without any fanfare.
“It wasn’t controversial. How difficult is it to accept that, if someone is committing a crime against you, that they can’t sue you as a result of their criminal action?” said Charles Heller, spokesman for the Arizona Citizens Defense League. “Even the ACLU should find that objectionable.”
Citizens Defense League Vice President John Wentling said the measure arose out of an Arizona Court of Appeals decision, Sonoran Desert Investigations v. Miller, that struck down part of Arizona law that gave victims immunity from lawsuits.
In that case, a shoplifter died after an altercation with security guard.
The court ruled that the portion of the law that addressed lawsuit immunity during a misdemeanor was in conflict with Arizona’s Constitution, Wentling said.
“Nobody argued the felony portion. Had somebody argued the felony portion that would have been struck down as well,” Wentling said.