Arizona politicians dispute who gets to appoint majority on Clean Elections Commission

Gov. Katie Hobbs and state Treasurer
Kimberly Yee are asking the attorney general to settle a dispute between
them over who gets to appoint a new majority on the Citizens Clean
Elections Commission later this month.

And that decision by Attorney General
Kris Mayes, a Democrat, and Solicitor General Joshua Bendor could have
major ramifications in the 2024 election, as Clean Elections
commissioners are tasked with enforcing the state’s new “dark money”
disclosure law that voters approved last year.

Republicans largely opposed the
ballot measure that requires disclosure of otherwise anonymous campaign
contributions to third-party groups, though the measure won the support
of more than 70% of voters. 

Since it would take a majority of
commissioners to initiate an action against a group that failed to
properly disclose the source of its money, a CCEC majority appointed by
Yee, a Republican, could potentially scuttle enforcement of the new law
in the first election it will be in effect.

And Yee says she ought to be able to
name replacements for three of the five commissioners this month. All of
the commissioners are serving years past the ends of their five-year
terms.

Because all five need to be replaced
before Feb. 1 — the date in state law that terms for commissioners begin
— Yee proposed that she and Hobbs each make all of their selections at
the same time instead of alternating, as would happen if the
appointments were done annually, as intended.

But in her Dec. 20 letter
to the governor, Yee wrote that she intended to name three of the five
commissioners — the panel’s two Republicans and an independent — citing
the fact that Hobbs made the most recent appointment to the CCEC in
2017, when she appointed GOP Commissioner Amy Chan.

State law dictates that the
appointments alternate between the governor and the highest-ranking
elected official in the opposing party. In 2017, with Republicans
controlling all statewide offices, Hobbs, who was then the Senate
Minority Leader, was the highest-ranking elected Democrat. 

Although Doug Ducey, a Republican,
was governor at the time and through 2022, he made no appointments, even
as the terms for all five commissioners expired. Yee, who is now the
highest-ranking elected Republican, wrote that the correct standard to
follow was to alternate appointments by political party. And since Hobbs
had made the last pick, that meant Republicans held the next
appointment. 

But in a Dec. 22 response,
Hobbs rejected Yee’s proposal. Rather than merely alternating between
parties, Hobbs wrote that the selection process requires the governor to
appoint every other commissioner. And since Ducey chose not to appoint
anyone during his final five years in office — he was obligated to
replace Commissioner Steve Titla, a Democrat, in 2018 — the next
appointment still lies with the governor, even if a Democrat now holds
that office.

The process, Hobbs wrote, “is
designed to produce a Commission that alternates each year between a 3-2
majority of gubernatorial appointees and a 3-2 majority of
non-gubernatorial appointees.” Were Yee to choose the majority of the
commissioners, that would go against what voters intended when they
created the Clean Elections Commission, she added.

Hobbs suggested her staff and Yee’s
meet before the end of the year to see if they could come to an
agreement on appointments, and seek an opinion from the attorney general
if they couldn’t. After the two sides failed to work out the conflict,
Hobbs’ office on Dec. 28 made a formal opinion request.

In a Jan. 2 letter
supporting the call for an AG opinion, Yee made her case for why the
current appointment ought to rest with her and not the governor because a
Democrat is now governor. 

She noted that when control of the
Governor’s Office switched parties in the past — in 2003, when Democrat
Janet Napoitano became governor, and again in 2009, when Republican Jan
Brewer replaced Napolitano — the appointments alternated between
parties, and control didn’t remain with the governor.

In 2002, Gov. Jane Hull, a
Republican, made her appointment. But a year later, Napolitano was
governor, and she still made an appointment. Likewise, in 2009, after
Napolitano resigned and Brewer became governor, the appointment was made
by Terry Goddard, the Democratic attorney general, because the 2008
appointment had been made by Brewer when she was secretary of state.

“In the absence of clear procedures,
this approach is most consistent with the intent of the statute, as it
would be illogical to have the same political party select a
commissioner twice in a row simply because the governor’s party changed
between appointments,” Yee wrote, “thus, making the ‘alternating’
requirement superfluous and provide an advantage to one party over the
other.”