Arizona GOP bid to block ‘dark money’ disclosure in 2024 fails

A judge on Friday refused a bid by
Arizona Republican legislative leaders to block an anti-dark money law
that voters passed in 2022, concluding that their claims that the new
state law is unconstitutional don’t pass muster.

House Speaker Ben Toma, R-Peoria, and
Senate President Warren Petersen, R-Gilbert, filed a lawsuit in October
alleging that Proposition 211 is unconstitutional because it violated
legislative authority. They asked the court to immediately block the law
so it could not be used to unveil the sources of campaign spending in
the upcoming 2024 election that would have remained anonymous in
previous years.

Arizona Attorney General Kris Mayes,
Secretary of State Adrian Fontes and the Citizens Clean Elections
Commission, which is charged with enforcing the dark money disclosures,
all defended the new law.

More than 70% of voters approved of
Proposition 211, also known as the Voters Right to Know Act, which
requires any person or organization making campaign media expenditures
of more than $50,000 to statewide elections or $25,000 to local
elections to disclose the original source of any contributions totalling
more than $5,000.

Toma and Petersen’s attorneys have argued
that the act has no guardrails and no oversight from the legislature.
However, Maricopa County Superior Court Judge Timothy Ryan wrote on
Friday that their challenge isn’t on solid legal ground.

In the 12-page ruling, Ryan wrote
that Toma and Petersen have not provided sufficient evidence to prove
that the act is unconstitutional and that it hamstrings the powers of
the legislature. In fact, he noted, Prop. 211 states that it does not
prevent lawmakers from making further changes to the law — as long as
they don’t loosen disclosure rules or penalties.

“Plaintiffs have not contended, nor is there sufficient evidence in the record, that any legislator hopes to run a bill in the 2024 session that may affect Prop. 211, much less evidence that a legislator is forgoing any legislative act because of supposed uncertainty about Prop. 211,” Ryan said in the ruling.

Ryan says in his ruling that the suit
brought by the two Republican lawmakers is “facial” in nature, meaning
that the challenge alleges that the law is always unconstitutional,
making it void.

“Facial challenges like Plaintiffs’
are disfavored because they rely on premature interpretations of
statutes and speculation about hypothetical situations,” Ryan said in
his ruling. “Because Prop. 211 has been the law in Arizona since
December 2022, the preliminary injunction that Plaintiffs seek changes
to the status quo, not preserve it.”

The amount of time between the
passage of the initiative and the lawsuit also was noted by the judge.
The suit was filed nine months after voters had already approved of
Prop. 211, and several months after another lawsuit — which is being
considered by another Maricopa County judge — was filed challenging the
constitutionality of the law on other grounds.

Ryan added that Toma and Petersen
would need to show an actual injury to the legislature if they hope to
prevail, and they haven’t yet done so.

“Courts have found an institutional
injury when plaintiffs alleged a challenged action nullified a
legislature’s vote or deprived the legislature of a specific power it
otherwise had,” the judge wrote, adding that the Republicans “allege
nothing like that here.”

“Prop. 211 does not restrict the
Legislature from passing laws,” he continued. “Prop. 211 goes no farther
than the Arizona Constitution..

Furthermore, they were unable to
demonstrate that the powers delegated by Prop. 211 removed any oversight
or “approval authority” that otherwise belongs to the legislature. The
Arizona Constitution already bars lawmakers from repealing or otherwise
weakening voter-approved initiatives.

Ryan also ruled that the dark money
disclosure law does not give “unfettered authority to create regulations
outside of the scope of Prop. 211,” something attorneys representing
Toma and Petersen claimed.

“The Court finds that granting
Plaintiffs’ requested injunction is contrary to the public interest and
would harm the People by preventing the Commission from continuing to
implement a voter-approved initiative,” Ryan said. “The public interest
favors permitting the Commission and the Secretary to continue to
implement Prop. 211 and preventing the Legislature from overriding Prop.
211.”

The ruling is expected to be appealed by Toma and Petersen.