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‘Dark money,’ renewable energy ballot measures in court

The question of whether voters get to decide whether to outlaw “dark money” could depend on whether a judge voids a law that throws a hurdle in the path of initiative organizers.

Kory Langhofer

Kory Langhofer

Attorney Kory Langhofer who represents groups that now do not disclose the source of their funds contends that the Outlaw Dirty Money committee does not have sufficient valid signatures to put the issue on the November ballot. At a hearing Monday, Langhofer told Maricopa County Superior Court Judge Teresa Sanders there are flaws with many of the signatures.

But much of Langhofer’s case rests on the fact that he issued more than a dozen subpoenas to people who circulated petitions, people who he contends were not legally qualified. These include people who Langhofer contends have felony convictions or did not provide a proper address.

None of those subpoenaed showed up in court on Monday.

He said a state law requires Sanders to automatically disqualify all of the signatures each gathered. If she agrees, that likely would leave the initiative with fewer than the 225,963 valid signatures needed to be placed on the ballot.

But attorney Kim Demarchi who represents initiative organizers is urging Sanders to reject that contention. If nothing else, she said these subpoenas were served just days ago, giving people insufficient time to respond.

Beyond that, Demarchi contends that automatic-disqualification law, approved in 2014 by the Republican-controlled Legislature, is an unconstitutional infringement on the right of judges to decide the issue of whether a person’s failing to show up means they weren’t obeying the law on petition circulators.

For example, she said the question of whether a person is a convicted felon and ineligible to circulate petitions is not a simple yes-no question. Demarchi said some of the circulators come from states where an individual’s civil rights are restored once they complete their sentence.

And Demarchi suggested that the automatic-disqualification provision was approved solely to place a hurdle — she says unconstitutionally — in the path of those who want to create their own laws.

“I think it’s hard to deny that it’s significantly easier to run to be a member of the Legislature and to file a lawsuit to kick off someone who’s trying to challenge you for that office or to file a lawsuit to kick off an initiative than to keep an initiative on the ballot,” she said.

That question of what happens when people who are subpoenaed do not show up also could affect another trial, also started Monday, in a bid by the parent company of Arizona Public Service to block a vote on a new renewable energy mandate. In that case, foes of the initiative have subpoenaed more than 1,600 circulators in their bid to disqualify any signatures they gathered.

Maricopa County Superior Court Judge Daniel Kiley struck down signatures collected by 254 circulators for the Clean Energy for a Healthy Arizona Act because the subpoenaed circulators did not show up to court Monday. Brett Johnson, an attorney representing those opposed to the initiative, could not immediately say how many signatures would be struck down because those circulators failed to appear.

More than 870 circulators showed up to the courthouse, overtaking a room used to keep jurors during jury selection and the building where the Maricopa County Supervisors meet. The 254 circulators whose signatures were invalidated make up about 15 percent of those who circulated petitions for the clean energy measure.

The business community and the Republican lawmakers who are their allies have shown an increasing hostility to voter-approved laws. These range from a system of public financing for candidates — meaning they are not beholden to special interests for their campaigns — to legalizing medical marijuana and requiring employers to pay their workers more than is required under federal law.

What has resulted is a series of new laws, including one that requires judges to keep initiatives off the ballot if their petitions do not strictly comply with all election laws.

That law, too, is being challenged in the “dark money” case. A judge in the renewable energy case has upheld the law as constitutional; a different judge reached a contrary ruling in a case challenging a ballot measure to hike income taxes on the rich for education.

The conflicts ultimately will have to be resolved by the Arizona Supreme Court, as will Demarchi’s contention that the automatic-disqualification provision is unconstitutional.

This lawsuit was brought by officials from the Free Enterprise Club, Americans for Prosperity and Concerned Veterans for America.

All three groups have put money into campaigns in Arizona. But all three have refused to disclose who is providing the cash, citing state law that allow them to use their status under the Internal Revenue Code as “social welfare” organizations to shield the names of donors.

This initiative would put what amounts to a “right-to-know” provision in the Arizona Constitution, mandating public disclosure the names of any individual, association or corporation that spends at least $2,500 in any two-year cycle. Those that fail to comply could be fined equal to triple the disclosed amount.

The renewable energy measure, being challenged in front of Judge Daniel Kiley, would constitutionally mandate that most utilities obtain half of their energy from renewable sources by 2030. That would override existing Arizona Corporation Commission rules which say utilities need to provide 15 percent of electricity from renewables by 2025.

APS is financing that fight, with utility officials and campaign spokesmen saying it would lead to higher energy costs and potentially even the closure of the Palo Verde Nuclear Generating Station, as nuclear power would not be counted as renewable.

Arizona Capitol Times reporter Carmen Forman contributed to this report. 

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