The New Primary Election Date is . . . Unconstitutional?

According to a recent ruling from the Maricopa County Superior Court, it is unconstitutional to amend any word or phrase in any statute that is deemed to be incorporated into the Citizens Clean Elections Act—a public funding scheme for participating statewide and legislative candidates. A similar ruling could doom the new primary election date.

In the December 2018 Superior Court ruling, the court found that portions of a separate campaign finance reform act violated the Arizona Constitution because certain universal concepts like “contribution” and “expenditure” were also mentioned in the Clean Elections Act:

“It is clear that the legislature has effectively amended the provision of the Citizens Clean Elections Act by altering key definitions that apply to the Act. Those amendments were not approved by a three-fourths vote of either house of the Arizona Legislature, and they certainly do not further the purposes of the Act[.] The legislature may not do indirectly, what it is prohibited from doing directly.”

If that theory is true, the Legislature’s recent bill (SB1154) moving the state’s primary election to early August is also unconstitutional. That’s because the “primary election” happens to be mentioned 37 times in the Clean Elections Act.

By moving up the primary, the Legislature arguably undercut participating Clean Elections candidates in at least two ways:

    1. Clean Elections candidates are only permitted to collect $5 qualifying contributions during the “qualifying period,” which is defined as the “period beginning on the first day of August in a year preceding an election and ending one week before the primary election.” By moving up the primary, therefore, participating candidates have 3 less weeks to gather those contributions to qualify for public funding.
    2. Clean Elections candidates have the benefit of filing the nomination petition signatures just after January 1st, while privately-funded candidates had to wait until early May. However, in moving the primary election, the Legislature also moved up the petition filing deadline for privately-funded candidates to early March. Thus, the Legislature arguably made it less attractive to run as a publicly-funded candidate by cutting the petition filing advantage almost in half.

Since SB1154 did not pass with a ¾ vote, and cannot be said to further the purpose of the Clean Elections Act, the primary election date must be unconstitutional. Or so goes the theory.

Why it matters. The Superior Court ruling is on appeal so this isn’t the last word. But the ruling should be overturned. Regardless of one’s views on campaign finance, an expansive reading of the Voter Protection Act can have unintended consequences—as the primary election bill demonstrates.

Otherwise, expect a future initiative drafter to strategically cross-reference other statutes for the Machiavellian purpose of rendering those other statutes off-limits to the Legislature. Imagine if the Legislature was precluded from amending tax, education, or healthcare policy because isolated terms from those statutes happen to be cross-referenced in a totally unrelated initiative. That might be good for election lawyers, but will certainly be bad for public policy.

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