Arizona Supreme Court limits Clean Elections’ power but lets fraud probe continue

The Arizona Supreme Court on Friday ruled that the Citizens Clean Elections Commission does not have the legal authority to overturn the secretary of state’s qualification of a candidate. 

But it also said that it won’t stop the commission, which oversees the state’s public campaign finance system, from investigating whether three longshot candidates committed fraud to qualify for millions in campaign cash.

The legal dispute centered on the Clean Elections Commission’s investigation into Green Party candidates Risa Lombardo and Duwayne Collier, who are running for governor and secretary of state, respectively, and Republican gubernatorial candidate Scott Neely, who lost in the July primary.

The trio has been accused of falsifying documentation for enough $5 contributions from voters to qualify for a collective $4.7 million in public campaign funds. All three are also subjects of a criminal probe by the Attorney General’s Office.

In August, the Arizona Mirror exclusively reported that six people who were listed in campaign finance records as having made $5 contributions to all three candidates were adamant they didn’t give any money to the candidates. On the same day, Tom Collins, the executive director of the Clean Elections Commission, sent letters to the three candidates, informing them of the Clean Elections investigation into their campaign finances and warning them that they could be required to repay all or some of the money.

Lombardo and Collier sued, arguing that the Clean Elections Commission was overstepping its legal authority by “decertifying” the candidates from receiving Clean Elections funding for their campaigns. Only the secretary of state, with the help of the county recorders, can certify that the candidates collected enough $5 contributions to receive public funding, they argued.

The Supreme Court on Friday agreed. In a four-page order, Chief Justice Ann Timmer wrote that state law does not grant the Clean Elections Commission any authority to determine whether a candidate qualified for public funding or to second-guess the merits of a qualification approved by the Secretary of State’s Office. 

And because Collins acknowledged in one of his briefs that an earlier assertion that the secretary of state made an error in qualifying Lombardo was no longer part of the commission’s investigation, the court did not need to determine whether the five-member panel has the legal power to order her to return millions of dollars if it found she was improperly qualified.

Timmer noted that the candidates asserted that the proper forum for challenging a candidate’s qualification for Clean Elections money is through litigation, but that issue wasn’t before the court. Likewise, she wrote, the court is not addressing the commission’s authority to investigate whether the three candidates committed fraud or any potential punishments it may implement.

“Those issues are best addressed after the Commission investigates any alleged malfeasance and imposes a remedy if malfeasance is found,” she added.

Tim La Sota, the attorney for Lombardo and Collier, praised the ruling.

“This is a much deserved rebuke to the malevolent bureaucrats at the Clean Elections Commission. The Supreme Court has put a stop to this shameful and illegal effort to do something the Commission clearly had no power to do,” he said in a written statment to the Mirror,. “The Commission has engaged in extraordinary efforts to interfere with our democratic elections this cycle, and this is the first step to stopping them.”

Collins said that the “most important line” in the court’s order was that it would not halt the investigation into Lombardo and Collier and saw the “very clear” distinction between the investigation into a possible improper certification of Lombardo and the alleged fraud now being probed.

“I intend to continue our investigation,” Collins said.