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Explanation of Clean Elections measure misleads ‘by omission,’ judge says

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A judge on Monday ordered lawmakers to provide voters with a bit more information on the changes they want voters to make in the operation of the Citizens Clean Elections Commission.

Maricopa County Superior Court Judge Christopher Coury said the Republican-dominated Legislative Council left voters in the dark by failing to adequately explain how if the measure is approved in November it would strip away some of the existing authority of the commission to craft its own rules.

That change would require the commission to have its rules reviewed – and potentially vetoed – by the Governor’s Regulatory Review Council, made up of gubernatorial appointees, or the attorney general who is an elected partisan official. And the political campaigns of both the governor and the attorney general are subject to commission oversight and fines for violations of laws governing donations and expenditures.

Coury called the flawed portions “misleading by omission” and blocked the Secretary of State’s Office from distributing a pamphlet to voters until the description, adopted by the Republican-dominated Legislative Council on a party-line vote, is amended.

By law, the council is required to craft an “impartial” analysis of each one. That analysis goes into a brochure sent to the homes of all 3.6 million registered voters.

The proposal would forbid publicly funded candidates from buying services from political parties and other groups that can influence elections. Rep. Doug Coleman, R-Apache Junction, said there is no reason that candidates who get tax dollars for their campaigns should give money to groups that could use funds to help other candidates.

The more controversial part, however, would subject the commission’s rule-making authority to outside oversight.

Both changes have to go on the ballot because it was a citizen initiative in 1998 that created the commission and the Arizona Constitution prohibits lawmakers from tinkering with anything enacted by voters.

In his five-page ruling, Coury rejected arguments by Tom Collins, the commission’s executive director, that the analysis to be sent to voters is misleading because it fails to spell out the circumstances where publicly funded candidates can now provide money to political candidates. And the judge found no fault with failing to tell voters who appoints the members of the Governor’s Regulatory Review Council.

“The descriptive nature of the term permits reasonable minds to conclude who appoints members to the GRRC,” Coury wrote.

But the judge said that impartiality is not the only test for a ballot description.

He said it also cannot be “misleading by omission.” And Coury did find things he thought voters need to know.

The judge said the explanation needs a clear statement that current law exempts the commission from having its rules reviewed by outside groups. And Coury said voters also need to be told that the commission, in establishing its own rules, already has procedures it is required to follow, including public notice and opportunity for public comment.

Collins said these facts are important because the commission, as set up by voters, was designed to not be subject to political interference.

“The Legislative Council went out of its way to obscure the fact that political appointees of the governor, whoever the governor is, and a politically elected official who might be subject to the commission’s own jurisdiction, might potentially have a say in how the commission’s rules operate,” he said.

House Speaker J.D. Mesnard, who chairs the Legislative Council, said he will review Monday’s ruling with attorneys and other lawmakers before deciding whether make the changes the judge said are necessary or appeal to the Arizona Supreme Court.

On the other side of the equation, Collins said no decision has been made whether to seek review of the rest of Coury’s ruling which rejected his claims that the explanation fails to provide information voters need.

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