Photo courtesy of Cindy Shebley.
Voters in Phoenix overwhelmingly approved a measure to force non-profit entities that spend money to influence city elections to disclose their contributors in an attempt to shine a light on “dark money,” but the measure is in violation of a new state law and the stage is now set for a legal battle.
Earlier this year, Tempe voters resoundingly approved a similar measure, but state lawmakers quickly introduced legislation to make the law moot.
House Bill 2153, which was eventually signed into law by Gov. Doug Ducey, prohibits any city, county or state entity from forcing disclosure of donors to nonprofit groups. The bill was passed along party lines, with Republicans supporting it and Democrats voting against it.
Ducey also signed off on Tempe’s ordinance in May, though it came with a word of caution. The governor said that his approval was based on current laws, not ones that would go into effect in August, like HB2153.
Recently re-elected Arizona Representative Vince Leach, R-SaddleBrooke, spearheaded the bill along with the Goldwater Institute, which is currently involved in two lawsuits in Colorado and New Mexico targeting similar disclosure measures.
Leach told the Arizona Mirror he hadn’t read Phoenix’s proposition, but said if it is similar to what Tempe did, then it would conflict with state law.
Leach said he is not considering new legislation around the issue next session and isn’t planning to request an investigation into both Tempe’s and Phoenix’s new disclosure measures. But if the “situations are right,” an investigation by the attorney general would likely be forthcoming, he said.
Matt Miller, a senior attorney at the Goldwater Institute, said in a statement that, if Phoenix attempts to enforce its new disclosure ordinance, it “will almost certainly result in litigation.”
“Proposition 419 would violate the constitutional rights of Arizona nonprofits and their supporters to voice their opinions about Phoenix ballot measures,” Miller added.
So, what might happen now that both the cities of Phoenix and Tempe have measures in place that are in conflict with state law?
There are a few scenarios.
A state investigation
The most likely scenario is that a legislator will call for an investigation into either Tempe, Phoenix or both.
State law grants lawmakers the authority to request the Arizona attorney general investigate municipal ordinances that they believe conflict with state law. If the AG determines the local regulation violates state law, then state-shared revenue will be withheld until the problem is resolved.
Local vs. State control
Another possibility is that Tempe and Phoenix could ask the courts to determine if the state law even applies to them, since both are charter cities.
Charter cities generally operate independently of the state and can’t have their local laws superseded, except on matters of “statewide importance.”
The Arizona Supreme Court has ruled that the regulation of local elections is a local matter, meaning both cities could argue the state law does not apply to them.
Tempe and Phoenix could ultimately ask the court to determine if the law applies to them.
Fingers in the ears approach
Lastly, both cities could simply attempt to ignore the law because of the previously mentioned Arizona Supreme Court ruling.
However, Phoenix still needs Ducey to sign off on its voter-approved measure, which may not happen, now that HB2153 is in effect.
No matter what option, the two cities are headed down the path to a legal battle that if they lose could ultimately cost the taxpayers. Tucson was ordered to pay the state $100,000 in attorney fees for their failed battle with the state, Phoenix and Tempe could be headed towards a similar fate.
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