Ducey attorneys challenge Clean Elections Commission jurisdiction

The Arizona Citizens Clean Elections Commission lacks jurisdiction to investigate a complaint filed against GOP gubernatorial candidate Doug Ducey, according to a response filed by Ducey’s attorneys.

Ducey is the subject of a complaint filed July 1 alleging illegal coordination between his campaign and dark money groups, including the Legacy Foundation Action Fund, over the creation of an attack ad against former Mesa Mayor Scott Smith, one of Ducey’s opponents in the primary election.

The April ad sought to link Smith to President Obama by virtue of his leadership role on the U.S. Conference of Mayors, and “can have no reasonable meaning other than to advocate the defeat of Mr. Smith,” wrote Smith’s attorney, Kory Langhofer.

A complaint was also filed with the Secretary of State’s Office.

Ducey attorney Michael Liburdi wrote that the commission shouldn’t respond to the complaint because “it lacks the jurisdiction to investigate questions involving non-participating candidate contributions” – Ducey’s campaign is funded through traditional fundraising efforts – and that even if it could investigate, “there was no actual coordination between LFAF and Ducey 2014.”

Liburdi’s letter includes sworn declarations from Gregg and Shauna Pekau – who Smith’s attorneys alleged had coordinated with either the Legacy Foundation Action Fund Foundation or the Ducey campaign – claiming they did no such work on the organizations’ behalf.
“Mr. Smith cannot provide a scintilla of actual evidence showing actual unlawful coordination,” Liburdi wrote.

He also wrote that the Legacy Foundation Action Fund ad was in fact an issue-advocacy ad and can’t be classified as an independent expenditure because it did not “expressly advocate” for Smith’s defeat in the governor’s race.

Attorneys for the Legacy Foundation Action Fund piggybacked on Liburdi’s letter in their own filing with the Clean Elections Commission, arguing in a letter sent July 16 that the commission has no jurisdiction over traditionally funded candidates and that, even still, there ad was purely for issue-advocacy.