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Lawyer says Cortes OK in campaign filings; SOS says law broken

Mesa Republican Olivia Cortes (Photo by Jack Kurtz/The Arizona Republic)

Republican Olivia Cortes, who could face a civil fine for failing to report contributions to her campaign, insists that the paid effort to gather signatures on her behalf was uncoordinated with her campaign.

Consequently, that effort shouldn’t be viewed as a contribution to her candidacy but as an independent expenditure, her lawyer, Anthony Tsontakis, said.

An independent expenditure is spending for or against a candidate that is not coordinated with that candidate.

Cortes, who dropped out of the race after qualifying for the recall election targeting Senate President Russell Pearce, didn’t report the spending on her campaign finance report.

But state election officials view the payment for those signatures as a contribution to Cortes’ campaign and must therefore be reported.

Believing Cortes violated campaign finance laws, the Secretary of State already referred the matter to the Arizona Attorney General’s Office. A spokeswoman for the Attorney General said Gila County Attorney Daisy Flores will take up the case.

State election director Amy Chan said when a candidate acts as a campaign treasurer, as is the case with Cortes, the candidate takes on legal responsibilities.

“I think that a candidate has a duty as her own treasurer to make sure that she’s reporting all of those in-kind contributions. I’m not saying it’s an easy job, but that’s just the way the law is,” Chan told the Arizona Capitol Times. “When you’re talking about candidate nomination petitions, I don’t know how those could ever be an independent expenditure.”

In her letter to the Attorney General, Chan said that the moment the Cortes campaign accepted the nominating petitions, the “independence of that transaction evaporated.”

During a trial over a lawsuit seeking to boot Cortes from the ballot, Suzanne Dreher, a paid petition circulator, testified she was hired by Petition Pros to circulate nominating petitions for Cortes.

She also said she was instructed by her employer to tell Pearce’s supporters that signing Cortes’ nominating petition would help Pearce keep his seat.
When pressed how, Dreher said by “dividing the vote.”

Tsontakis, Cortes’ attorney, argued that the situation is unique: Cortes had no idea that some of the signatures she turned in to the Secretary of State were gathered by paid circulators.

The lawyer said Cortes only found about it during the course of the trial — after she had turned in the signatures and qualified for the ballot.

The lawsuit alleged she was a “diversionary” candidate whose aim was to siphon off Hispanic votes from Jerry Lewis, Pearce’s challenger. The suit was later dropped in exchange for her decision to voluntarily quit the race.

Tsontakis said because the anonymous payment was uncoordinated with Cortes’ campaign and Cortes had no way of knowing she was receiving signatures that were gathered through paid circulators, it should be regarded as an independent expenditure.

Under this scenario, it would be the responsibility of that independent expenditure group to disclose that payment.

When pressed, Tsontakis admitted it may be Cortes’ responsibility to know that someone had paid for the signatures.

But he also reiterated that Cortes’ situation is unique.

“There’s no just way for the candidate to tell the difference between a nomination petition that has been circulated by a volunteer, and a nomination petition that has been circulated by a (paid) worker,” he said. “Because it’s impossible to know, you can’t hold the campaign accountable.”

To date, no individual or campaign committee has come forward to claim responsibility over the payment.

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