A U.S. District Court judge has thrown out a lawsuit seeking to void portions of state election law that the plaintiff contends has illegally stifled free speech.

Judge Mary H. Murguia of the District Court in Phoenix ruled Sept. 30 that Arizona Right to Life misinterpreted state law, and that the state has not enforced the provision in the way that Arizona Right to Life fears. Because no harm has come to Arizona Right to Life, it has no standing to bring suit, the judge wrote.

James Bopp Jr., a Terre Haute, Ind., attorney who is representing Arizona Right to Life in the lawsuit, said he intends to appeal Judge Murguia’s order to the U.S. 9th Circuit Court of Appeals in San Francisco.

“Post-litigation promises by public officials not to enforce statutes have no weight,” Mr. Bopp told Arizona Capitol Times on Oct. 1 in a telephone interview. “They could change their minds at any time. I will endeavor to get something into the 9th Circuit before the statute bites again, which will be 16 weeks before the next election, 2004.”

The lawsuit sought to strike down ARS 16-901.01.A.2, which prohibits certain organizations from sending communications in the 16 weeks prior to a general election unless the organizations are registered with the Secretary of State’s Office and file campaign finance reports. The suit also sought to overturn ARS 16-917, which requires organizations to send copies of any communications to the candidates who are mentioned. Both statutes violate free-speech rights under the First Amendment to the U.S. Constitution, the lawsuit contended.

“Arizona Right to Life is not a political action committee and should not be forced to register as a political action committee,” Mr. Bopp has said. “Arizona Right to Life has the right under the First Amendment to talk about what politicians are doing, the positions they’ve adopted, and this, of course, prohibits any of that.”

The lawsuit described Arizona Right to Life as a “nonprofit political advocacy corporation and a grassroots services organization.”

“The primary purpose of [Arizona Right to Life] is to present detailed and factual information upon which individuals and the general public may make an informed decision about the various topics of fetal development, abortion, alternatives to abortion, euthanasia and infanticide.”

The lawsuit was drafted prior to the 2002 general election, stating that Arizona Right to Life wished to “engage in issue advocacy and mention in its communications the names of candidates for state office, i.e., Matt Salmon for governor and Andrew Thomas for attorney general, before the Nov. 5, 2002 general election, including one or more of these communications within 10 days of the election.”

Statute Creates A ‘Chilling’ Effect, Opponent Says

Even though the election was over by the time the lawsuit was filed Nov. 12, Mr. Bopp said the statutes nonetheless remain on the books and create a “chilling effect” on free speech.

Judge Murguia, however, didn’t agree, writing in her order that Arizona Right to Life has misinterpreted the statutes in question.

“A communication that merely ‘refers to one or more clearly identified candidates…in the sixteen-week period’ before the election cannot constitute an ‘independent expenditure,’ under a plain reading of ARS 16-901, unless it also makes an express plea for ‘the election or defeat of a clearly identified candidate,’” Judge Murguia wrote.

Arizona Right to Life’s “intended speech, which plaintiff avows ‘would refer to candidates for state office and Legislature, but without a clear plea to vote for or against such candidates,’ does not trigger the disclosure and reporting requirements of Arizona’s campaign finance law,” the judge wrote.

The judge’s order not only confirms that Arizona Right to Life had no standing to bring suit, it also affirms the state’s interpretation the election statutes, said Jessica Funkhouser, an assistant attorney general who defended the state in the lawsuit.

As for Mr. Bopp’s contention that the state could begin interpreting the statutes in the manner described in the lawsuit, Ms. Funkhouser said, “We wouldn’t get very far in the 9th Circuit by doing what we’ve avowed we haven’t done and won’t do.”

FYI

The case is Arizona Right to Life, Inc., v. Janice K. Brewer, case no. CIV2002 2200 PHX MHM. —