Arizona election law is outdated and needs reform. A few issues in the current system receive perennial attention in the media. For example, liberal groups commonly cite anonymous funding of political speech as a major defect in our system, while conservative activists frequently question the constitutionality of the state’s extraordinarily low contribution limits. Many other gaps in Arizona election law are just as real, but not as well-known.
While an overhaul of Arizona election laws would be complex and detail-intensive, any serious reform bill would be based on some broad themes:
• A balanced approach to anonymous speech. The law allows certain nonprofit organizations to engage in electioneering without disclosing their funding sources before an election ends. This practice is growing almost exponentially, both in Arizona and elsewhere. If the Legislature changes the law to require all individuals and organizations sponsoring significant electioneering activities to timely disclose their funding sources — and most voters reportedly favor such a change — there must be exceptions preserving anonymity where an individual or group (usually dissenters) have a credible fear of retaliation or mistreatment due to their speech.
• Improved searchability. Under the current system, hundreds of separate offices throughout the state accept campaign finance reports, and consequently it is prohibitively difficult to search campaign finance records thoroughly. To maximize transparency, Arizona law should require all political committees and independent expenditure groups to file their reports electronically with the Arizona Secretary of State’s Office. This would end the current system of fragmented recordkeeping and unsearchable records — and because the filings would be submitted through the Internet, it would not increase the difficulty or cost of reporting.
• Equal application of the law. The law authorizes local authorities to investigate most violations of campaign finance laws — but this system is inefficient and ineffective because most enforcement officers have very little experience in this specialized area and jurisdictions differ in their interpretations of the laws. If Arizona moves closer to the federal model, and empowers a commission or state agency to investigate all violations and applies the law uniformly, such problems can be largely avoided. To be sure, local officers and opposing candidates could also be authorized to enforce violations in the absence of state-level enforcement in order to address concerns about selective enforcement, but the model of giving nearly exclusive authority to non-specialists in local offices has not worked well.
• Contribution regulations. Arizona has some of the lowest contribution limits in the nation, and several portions of Arizona’s contribution limits may be unconstitutional. Moreover, one of the pillars of Arizona campaign finance — matching funds from the Clean Elections Commission — was held unconstitutional after the 2010 elections. It is time for the state Legislature to take a fresh, big-picture look at the interplay and constitutionality of our state and local contribution regulations.
• Increase clarity. Compared to federal election regulations, Arizona election laws are unclear and difficult to apply. Our statutes should be revised for clarity and permit candidates and others to request advisory opinions from enforcement officers where the law is unclear. This would help increase compliance and enable activism in citizens who cannot afford to retain election lawyers before speaking out.
• Re-examine Arizona’s voting system fundamentals. Arizona uses a first-past-the-post elections system, in which every citizen votes for one candidate and the candidate with the most votes wins. Most voting systems experts believe this is a sub-optimal system, in part because it can allow fringe candidates to win elections (especially primary elections) when citizens in the mainstream divide their votes between multiple moderate candidates. There are many alternative systems. Under the “approval voting” model, for example, citizens vote for every candidate of whom they approve, and the candidate with the most votes wins. Such an alternative system might empower moderate candidates, and end the trade-offs that voters must currently make between “electable” candidates with whom the voters disagree and “unelectable” candidates whose views more closely match the voter’s. To be sure, Arizona may not be ready to abandon its first-past-the-post system, but there is a national debate about such fundamental voting system reforms and Arizona should engage in that discussion.
By plugging the holes that have recently been exposed in the media and discussing and addressing the less obvious problems that have emerged over time, our Legislature can significantly improve Arizona’s electoral system.
— Kory A. Langhofer practices election law at Snell & Wilmer, L.L.P. in Phoenix.