Republican Sen. Vince Leach wants the attorney general to investigate if a Tempe ordinance designed to shed a light on anonymous campaign spending conflicts with state law.
Whether the ordinance stands or is found in conflict may hinge on the role Tempe voters had in approving it.
The ordinance, which requires any organization that spends more than $1,000 in a city election cycle to disclose the source of its funding, was approved by a 9-to-1 margin in March 2018.
Technically, the Tempe City Council also approved the ordinance.
The council voted to adopt the anti-dark money measure in November 2017, but its enactment was conditional on the approval of the city’s voters.
Leach, a Tucson Republican, said that it doesn’t matter whether the voters had a say or not. What matters, he said, is that the “city still took the action.”
It was Leach who got a law in state statute to conflict with the Tempe ordinance in the first place. While Tempe voters were casting ballots in March last year, Leach was shepherding HB 2153 through the Legislature. Gov. Doug Ducey signed the bill in April, shortly after the city’s vote.
The state law makes it illegal for a municipality to require a nonprofit in good standing with the Internal Revenue Service from being forced to disclose the identity of its donors.
In a complaint filed with the attorney general on March 11, Leach wrote that there’s no way to reconcile state law and the Tempe ordinance, which is agnostic on the tax-exempt status of organizations spending money in local elections.
“In the event of a conflict between a municipal ordinance and state law, state law controls,” Leach wrote to the AG’s office.
Leach’s complaint makes no mention of the role Tempe voters had in enacting the law. Instead, he only highlights the Tempe City Council’s vote in November 2017, which essentially referred the ordinance to city voters.
“Whether they did it by themselves or whatever, the city took the action, and that’s in violation, in my humble opinion, of the bill we passed,” Leach said.
That distinction could be crucial to how the Attorney General’s Office handles the case.
The underlying law that allows legislators to demand an attorney general’s investigation of cities or towns states that attorneys must investigate any ordinance, regulation or other officials action “adopted or taken by the governing board of a county, city or town.” The law doesn’t contemplate voter-approved regulations.
“This will be a unique investigation considering there are council and voter approved components to the ordinance subject of the complaint,” said Ryan Anderson, a spokesman for Attorney General Mark Brnovich.
Tempe officials may also argue that local elections are a matter of local concern, not the state’s. Christina Estes-Werther, general counsel for the League of Arizona Cities and Towns, said there’s plenty of case law that asserts the right of municipalities to have a say over how to run their elections.
Even Leach acknowledged in his complaint that the Arizona Supreme Court has ruled that the operation of city elections “is peculiarly the subject of local interest and is not a matter of statewide concern,” a decision cited even when the high court ruled against Tucson in a case dealing with a conflict between local and state laws in 2017.
But Leach argued in his complaint that municipal authority in elections is not “absolute,” and cited a 1997 Supreme Court ruling that determined the state can establish uniform election dates that cities must comply with.
“One thing is clear: the State of Arizona always has the authority to protect the constitutional rights of its citizens, and no local ordinance may violate those rights,” Leach wrote in his complaint.
The complaint has long been anticipated. Ducey, who obliged his constitutional duty to sign off on the Tempe ordinance in April 2018, warned at the time that the city’s anti-dark money days may be numbered – a passing reference to his signing of Leach’s bill to supersede city law.
“Please note that this approval is based on the law as it is at the time of the approval and does not take into account any changes that have not yet taken effect from this legislative session,” Anni Foster, Ducey’s deputy general counsel, wrote last year.
The Attorney General’s Office now has 30 days to decide if Leach’s complaint has merit.