Legal battle over anti-dark money initiative heads to Arizona Supreme Court

The legal battle over the fate of a ballot initiative that aims to increase campaign finance transparency has taken some extraordinary turns in recent days, with Gov. Doug Ducey joining a legal filing that encourages the Arizona Supreme Court to throw out signatures supporting the initiative, and the ballot measure’s backers claiming the governor is making a bad faith play against their proposal. 

In an Amicus brief filed with the Arizona Supreme Court on Saturday, Ducey, along with Senate President Karen Fann, R-Prescott, and Speaker of the House Rusty Bowers, R-Mesa, alleged that some petition circulators collecting signatures for the Voters’ Right to Know Act didn’t comply with state law – so the signatures they collected should be discarded. 

But Terry Goddard, a former Attorney General who’s backing the ballot initiative, said the argument flies in the face of a document Ducey himself signed off on in 2019, Arizona’s Election Procedures Manual (EPM) and amounts to an effort to change the rules of the game after the players have already made their moves. 

The Voters’ Right to Know Act would require the disclosure of the source of all donations over $5,000 that fund campaign media spending. It’s part of a larger campaign led by a bipartisan group that wants to mitigate the impact of “dark money” over Arizona politics. 

The Ducey brief argues that a state statute should be read as requiring paid and out-of-state petition circulators to file a new circulator application with the Secretary of State for each initiative that they circulate. If that’s the case, then many signatures collected for Voters’ Right to Know would be invalidated, since the circulators who collected them relied on previously filed applications. 

“The text makes it clear that everything about the application is initiative specific. That makes sense because the petition itself is also initiative-specific,” the brief argues. 

In response, Goddard argued that the EPM outlines a clear process for circulators to register with the Secretary of State and makes it clear that they only must do so once, even if they eventually circulate multiple petitions. In fact, he said, the Secretary of State is only equipped to accept one circulator application from any given person. 

“We followed all the rules that were in (the EPM) and now he’s (Ducey) saying ‘Oh, those rules don’t really apply, I meant something else,’” Goddard said at a news conference on Tuesday. “I don’t see how any public official gets to come back after – in good faith – these people and hundreds of others have passed petitions and gotten thousands of signatures. They suddenly said, ‘Well, the rules that you followed are not the ones I really meant.’” 

The Amicus brief signed by Ducey, Fann and Bowers repeats an argument made by attorneys for the Free Enterprise Club, which brought the lawsuit against Voters’ Right to Know. Multiple Maricopa County Superior Court judges rejected that argument last week, so the Free Enterprise Club appealed the case to the state Supreme Court. (Five of the seven justices currently on the court were appointed by Ducey.) 

The Arizona Supreme Court’s decision could potentially play a decisive role in the fate of the ballot measure. According to a brief filed by the attorneys for the groups challenging the initiative, up to 67,579 Voters’ Right to Know signatures could be tossed if the Supreme Court overturns the lower court decision. 

The initiative needs 237,645 signatures to qualify for the ballot and had 355,726 following an initial review by the Secretary of State’s office.  

But that number could shrink after reviews by county recorders, who might invalidate additional signatures. The county recorders are due to finish their reviews by Friday, and on Tuesday, Goddard said they were still waiting on reviews from Maricopa, Pima, Coconino, Yavapai and La Paz counties. 

In addition to the Voters’ Right to Know Act litigation, there are ongoing challenges against two other proposed ballot measures – the Predatory Debt Collection Act and Arizonans for Free and Fair Elections – relying on the same argument about petition circulator documentation. That means the court’s decision could impact those measures, as well. 

The battle is part of a larger struggle over the power of ballot measures and unidentified political spending in the state. 

In recent years, ballot measures have been used to toss out laws passed by Arizona’s Republican-controlled legislature – like a previous attempt to expand school vouchers – frustrating some conservative policymakers. Powerful groups like the Arizona Chamber of Commerce have had their eyes on reforms to limit the power of referenda and initiatives for years. Meanwhile, Goddard has made repeated efforts to get an anti-dark money initiative on the ballot in Arizona – this year marks his fourth attempt.