Challenge to 2022 Arizona ballot measure fails

Federal judge rejects claim that ‘Voters right to Know act’ runs afoul of federal constitutional protections

PHOENIX – There’s nothing inherently unconstitutional about ensuring Arizona voters know who is trying to influence elections here with their money, a federal judge has ruled.

In a 30-page opinion, Judge Roslyn Silver knocked down a series of arguments by Americans for Prosperity on how Proposition 211 infringes on its free speech rights and those of its donors. The judge was no more sympathetic that requiring disclosure runs afoul of other constitutional protections that protects the ability of individuals and groups to refuse to associate themselves with others.

This is actually the third such challenge to the 2022 ballot measure that has failed.

But what makes this significant is that other rulings were issued by state court judges based on issues of state law and state constitutional provisions. This is the first decision by a federal judge who rejected any claim that the voter-approved “Voters Right to Know Act’’ runs afoul of federal constitutional protections.

And Silver showed little sympathy to the legal arguments presented by the organization’s attorneys, saying more than once they were making a “strained reading’’ of the law, describing one of their arguments as “hard to follow,’’ and even calling their reading of the statute “implausible and divorced from context.’’

There was no immediate comment from the organization, founded by the conservative Koch Brothers. It lists itself in court records as being engaged in “broadbased grassroots outreach to advocate for long-term solutions to the country’s biggest problems.’’ And it identifies those as including “unsustainable government spending and debt, a broken immigration system and a rigged economy.’’

The challenged law, approved by a 3-1 margin, requires public disclosure of anyone who has donated at least $5,000 to influence candidate elections and ballot measures. More to the point, it requires the group that does the ultimate spending to trace the funds back to – and identify – the original donor, no matter how many hands through which the cash has passed.

In filing suit, the organization’s attorneys argued the First Amendment protects the right of individuals to donate to advocacy organizations without fear their identities would be disclosed. They claimed that Proposition 211 “trammels that right by subjecting countless Americans nationwide to governmental doxxing for doing nothing more than supporting their chosen non-profit organizations and charities.’’

Silver said those claims do not stand up against federal appellate court rulings on issues of disclosure which concluded that there is “a strong governmental interest in informing voters about who funds political advertisements.’’

“Identifying funders enable the electorate to make informed decisions and give proper weight to different speakers and messages,’’ the judge wrote.

Silver acknowledged that current campaign finance laws do require disclosure of the ultimate group that spends the money.

“Funders, however, have identified a way to avoid meaningful disclosure,’’ she said. Silver said there often is a chain through which the dollars pass, with donors to local committees often simply being other committees.

“And committees often obscure their actual donors through misleading and even deceptive committee names,’’ the judge said.

All that, said Silver, can obscure information that is in the “interest of an informed electorate.’’

“That interest is not meaningfully vindicated by disclosure identifying only the creative but misleading names of the immediate donors,’’ the judge wrote.

“Disclosure regimes aimed at identifying who is speaking are only effective if the disclosures identify the speaker,’’ she continued. “Accordingly, the act’s requirement of identifying the original source of funds bears a substantial relation to the governmental interest of informing the electorate who is paying for campaign media spending.’’

The judge was no more sympathetic to argument suppresses speech by groups like Americans for Prosperity because it restricts their ability to spend money they are given by “willing donors who are duly informed and glad to support the organization’s activities, provided only that the donors can preserve anonymity.’’

“This appears to be an argument that all all campaign disclosure laws are unduly burdensome because they require disclosure of who is funding election-related speech,’’ Silver said. She said there is not just a long line of precedents upholding campaign finance laws but “there is no cognizable burden to prohibiting anonymous donations to covered persons.’’

Silver also brushed aside arguments that the law even would require financial disclosure by someone who makes an online commentary. She noted the statute itself exempts news stories, commentaries and editorials, saying the fears of AFB regarding websites “appear to be imaginary.’’

On a separate note, the judge pointed out there are ways for individual donors to an organization to avoid having their names become public.

One, she said, is by keeping their funding to less than $5,000. But Silver also noted there is a provision in the law that allows donors to avoid identification if they demand that the recipient organization not use the funds for any political purpose that would require disclosure.

In one prior ruling, Maricopa County Superior Court Judge Scott Mccoy rejected arguments by the Arizona Free Enterprise Club and the Center for Arizona Policy that disclosing the names of those who finance their effort to influence violated state constitutional provisions.

“In fact, Arizona’s Constitution required the first Legislature to pass an election disclosure law to publicize ‘all campaign contributions to, and expenditures of campaign committees and candidates for public office,’’ he wrote.

And in a separate decision, Maricopa County Superior Court Judge Timothy Ryan rejected a bid by House Speaker Ben Toma and Senate President Warren Petersen to block implementation of Proposition 211 ahead of the 2024 election. They argued that the voter-crafted initiative infringed on the rights of the Republican-controlled Legislature.

But Ryan said the Arizona Constitution gives voters the same authority as legislators to enact law. And he said they are presumed just as valid, even if the GOP lawmakers do not like it.