A claim that lawmakers are giving voters a flawed explanation of a measure on the November ballot drew a skeptical reaction Friday from the judge hearing the case.
Maricopa County Superior Court Judge Christopher Coury did not dispute the argument by the Citizens Clean Elections Commission that the description crafted by the Republican-controlled Legislative Council of changes sought by Republican lawmakers does not contain certain elements about how the commission operates. That includes not only a full list of the duties of the commission, created by voters in 1998, but also the procedures it must now follow when adopting rules.
But Coury said he’s not sure all that is necessary for the explanation of the measure that will appear in the brochure to be mailed to the homes of all 3.6 million registered voters ahead of the general election.
Commission attorney Joe Roth told the judge that state law requires the council to prepare an “impartial” analysis of all ballot measures.
“It has to be fair, neutral and even-handed,” he said. “It can’t omit, exaggerate or understate material provisions in a way that would be misleading.”
And Roth said there are things that a voter, looking to the analysis as a guide to what this ballot measure would do, is not being told.
The biggest complaint is about a provision in the measure to subject the commission’s rules to review — and potential rejection — by the Governor’s Regulatory Review Council.
That fact is mentioned in the analysis. But he said it is worded in a way to make voters believe that the commission until now has had has free rein when enacting rules when, in fact, there are existing requirements for public notice, meetings and comment.
Potentially more troubling, he said, is the failure to point out that it was voters who in 1998 set up the voluntary system that allows candidates for statewide and legislative office to get public funding if they don’t take other special-interest dollars.
“Part of the voter-approved initiative was the establishment of the commission,” Roth said.
“And part of that Clean Elections Act makes the commission independent and free from oversight of other parts of the government,” he continued. “That’s a pillar of the commission’s independence.”
What the Legislative Council analysis does not say, Roth told the judge, is that the Governor’s Regulatory Review Council, which would get veto power of commission rules on everything from candidate funding to enforcing campaign finance laws, is made up of political appointees of the governor who can fire any of them at any time.
“Voters are now being asked to undo a significant piece of what makes the commission independent,” he said, without being fully informed of that change.
But Mike Braun, staff director of the Legislative Council, told Coury that the analysis was never intended to be a full-blown explanation of every aspect of the underlying law and the changes that are being sought. Instead, he said, it “provides the voters a concise and neutral analysis” of what is proposed.
“The council analysis properly omits a discussion of the policy issues,” Braun said. He said people are free to make those points elsewhere in the pamphlet where individuals can submit their own 300-word arguments.
And Braun said voters are free to read the actual statutory changes that will also be in the pamphlet.
That argument, however, drew questions from Coury who suggested that simply making the text available would not give voters information they might want or need.
Anyone looking at the text of the legislation would see that it proposes to repeal “Commission rule-making is exempt from Title 41, Chapter 6, Article 3.” That’s the state’s Administrative Procedures Act.
The judge wondered out loud how anyone reading that verbiage — complete with a line stricken through those words — would understand how that change would actually affect the commission’s operations.
“The only reference to the Administrative Procedures Act is the arguably cryptic reference that’s stricken,” Braun conceded. But he said the council analysis cures that by mentioning the Administrative Procedures Act.
“The council called that out so when the voters read the publicity pamphlet they have the pieces that they need to put the puzzle together,” Braun said.
Coury promised a ruling by the end of the day Monday. But whichever side loses is likely to seek Arizona Supreme Court review.